/>iSpring is here, and along with the change in season comes a flurry of graduation announcements, parties, and for employers, an upsurge of applications and resumes from recent high school and college graduates. Recent graduates and interns provide a wealth of talent for many employers, and often become a core part of their operations and strategy. However, there are a few employment law considerations that must be understood by a company's HR representative, and really, everyone involved in the hiring process, when advertising, hiring and determining wages for Spring hires.
Advertising for Talent - High School Diploma Requirements, Potential Violations of the Americans with Disabilities Act?
Recently, the U.S. Equal Employment Opportunity Commission ("EEOC") issued an Informal Discussion Letter ("EEOC Letter")[1] which opined that employers who require high school diplomas as a minimum standard for job applicants, and who often advertise as such, could be in violation of the Americans with Disabilities Act, because they are screening out individuals who are unable to graduate because of a learning disability. Though Informal Discussion Letters give guidance regarding a particular inquiry and are not binding precedent, this letter serves as a wake-up call for employers of skilled and unskilled workers alike, who have long considered a high school diploma requirement to be a minimal, achievable and useful standard to ensure that its workforce possesses basic reading, writing and math skills.
The Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. ("ADA"), is applicable to employers who employ more than fifteen (15) employees, and prohibits employers from discriminating against a qualified individual - those who can perform the essential functions of the employment position with or without reasonable accommodation - on the basis of his or her disability, during all stages of the employment relationship, including throughout "job application procedures;" during the "hiring, advancement, or discharge of employees;" and with regard to "employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S. C. 12111(8) and 12112. A disability is defined within the ADA as a "physical or mental impairment that substantially limits one or more major life activities of such individual" -- generally including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working -- or "a record of such an impairment" or "being regarded as having such an impairment". 42 U.S.C. 12102.
According to the recent EEOC Letter, an employer may still apply the high school diploma requirement (and presumably other degree or certification requirements) if it can demonstrate that the requirement is "job related and consistent with business necessity," which essentially requires a showing that the functions of the particular job position cannot easily be performed by someone who does not have a high school diploma. For example, for a legal secretary, who must possess significant reading, writing, word processing, and math skills to perform his or her job, a high school diploma requirement may be deemed "job related and consistent with business necessity," but the same may not be true for a grocery bagger, hair stylist or delivery driver, who may not utilize the same skills taught in high school as a part of his or her job functions.
In light of this letter, and the reality that the EEOC may soon be inclined to apply this new position in the right case, it is prudent for employers to take another look at its job advertisements and applications to determine: (1) whether a high school diploma is actually essential to the job position; (2) what skills taught in high school are actually required for the position; and (3) how they can revise their job advertisements and applications to reflect the skill requirements necessary to the particular job, rather than a threshold diploma requirement. It is also advisable to re-train management to ensure that they are not discriminating against applicants with learning disabilities who can still perform the essential job requirements with or without reasonable accommodation, but who have not been able to achieve a high school diploma. While an employer is not required to prefer the learning disabled applicant over other better qualified applicants, it must consider the applicants true ability to perform essential job functions through demonstration of skills, work history considerations, etc., in lieu of a strict high school diploma requirement.
It is recommended that you consult with counsel before advertising for a position that requires a high school diploma or other educational degree or certification.
Interviewing and Hiring Talent - Hiring "Recent Graduates," an Age Discrimination Concern?
Advertisements for job positions seeking "recent graduates" of high school or college, may implicate an age discrimination concern, because such language may discourage those over forty (40) from applying. Though in recent years, there has been an upsurge of non-traditional students seeking to fulfill their graduation requirements, or seeking advanced degrees to increase employability, older individuals are still less likely to fit into the category of "recent graduate".[2] As such, this or similar terms might be worth avoiding when advertising a job position. It is equally important that an employer's HR representative, or others involved in the hiring process, understand that certain questions or discussions during the application or interview process - How old are your children? Do you have grandchildren?, etc. -- could also create a perception that an applicant is being discriminated against due to his or her age.
The Age Discrimination Act of 1975, enforced by the Civil Rights Center, prohibits discrimination on the basis of age in programs and activities that receive federal financial assistance, and the Age Discrimination in Employment Act of 1967 ("ADEA") protects certain applicants and employees 40 years of age and older from discrimination on the basis of age. 29 U.S.C. §6101 et seq.; 29 U.S.C. §621 et seq. The ADEA, which is enforced by the Equal Employment Opportunity Commission ("EEOC") applies throughout the employment process - hiring, compensation, promotion, discharge - and also applies to the conditions or privileges of employment.
While the ADEA does not expressly prohibit asking an applicant for his or her age, requests for information that indicates age are closely scrutinized by the EEOC, because such questions indicate a possible intent to discriminate based on age. In order to avoid such implications, it is important that an employer's HR representative, as well as all employees involved in the hiring process, are adequately trained, aware and sensitive to certain questions and topics of discussion that could be perceived as designed to discriminate on the basis of age. If an age inquiry is necessary - perhaps to complete a criminal background check or for other lawful purposes - an employer may wish to wait until after hiring the employee to request that information.
If you have concerns regarding whether your job advertisements, applications or hiring process could indicate intent to discriminate based upon age, you should contact counsel for advice regarding your company's specific situation.
Paying Talent - Interns, Free Talent?
Interns are often a valuable resource for employers - from high school aged technical school interns, to college students trying to gain experience their chosen field, to law school students trying to gain valuable exposure to the practice of law - and in this still tender economic climate, many may be willing to work for free in exchange for a resume boost. However, it is important to consider whether this too-good-to-be-true deal is a violation of Federal employment law that could put your company at risk.
Pursuant to the Fair Labor Standards Act ("FLSA"), individuals who "suffer or [are] permit[ted]" to work must be compensated for the services he or she performs for an employer. 29 U.S.C. 203(e) (1). More often than not, interns - at least in the "for profit" public sector[3] - must be paid at least minimum wage plus overtime compensation above forty (40) hours per workweek. When determining whether the internship position for which you wish to hire may be uncompensated, the overarching determination is whether the intern will be serving his or her own interest in receiving training or instruction, or if the intern is benefitting the employer. Walling v. Portland Terminal Co., 330 U.S. 148, 152-153 (1947).
According to the U.S. Department of Labor's Wage and Hour Division, six (6) questions have been deemed applicable to this determination, and include:
- Is the internship similar to training that would be given in an educational environment?
- Is the internship experience for the benefit of the intern?
- Does the intern displace regular employees?
- Does the employer derive any immediate advantage from the activities of the intern?
- Is the intern entitled to a job at the conclusion of the internship?
- Does the intern understand that he or she is not entitled to wages for the time spent in the internship?
Regarding the first criteria, if the internship occurs in a classroom-like setting, rather than within the employers normal operations, and if the skills learned are applicable to many employers - not just the one providing the internship - it is more likely that the intern may be exempt from the FLSA's wage and overtime requirements. This also makes it more likely that the internship benefits the intern, rather than the employer. Also, if the intern's activities do not result in any profit to the business (or related networking or client relations gain), if the intern is not displacing a regular employee, and if the interns activities are closely supervised by existing employees or if the intern essentially shadows an existing employee in his or her job, it is more likely that an unpaid internship is appropriate. Finally, it is important that an unpaid intern understand that he or she is not entitled to compensation and that he or she cannot expect employment at the conclusion of the internship. Such an arrangement is considered a trial or training period for the employer, and the intern will be considered an employee subject to the FLSA's wage and hour requirements.
If you are considering hiring unpaid summer interns, you should first consult with appropriate counsel.
Conclusion
These considerations should not deter you from hiring graduates this Spring. Interns, recent grads and educated employees in general can be a great asset to your business. However, it is important that you consider whether your advertisements, applications and hiring procedures could expose your business to liability. Typically small changes and training can go a long way towards protecting your company from the potential claims discussed above.
[1] A copy of the letter can be viewed at: http://www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_standards.html.
[2] Maggie Jackson, Taking the Next Step, Boston Globe, September 13, 2009, at 1, available athttp://www.boston.com/jobs/news/articles/2009/09/13/sour_economy_prompts_more_older_adults_to_return_to_school/("By 2007, more than a third of people studying for an associate's or higher degrees were 25 and older. By 2017, the ranks of these older students are expected to grow 20 percent, according to the US Department of Education.").
[3] Under certain circumstances, the FLSA makes an exception for those who volunteer to work for a state or local governmental agency or for certain religious, charitable, civic or humanitarian non-profit organizations. However, when determining whether your non-profit may hire unpaid interns, you should first consult with counsel.
