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A. RECRUITING EMPLOYEES

1. False Statements As Inducements

a. Neither an employer nor its agents may persuade or influence any person to "change from one place to another in this state" or to move into this state by means of false statements concerning the nature of the work, the compensation for the work or the sanitary conditions of the work. Minn. Stat. § 181.64.

b. An employee who changes his employment or place of employment due to such false statements can sue for actual damages sustained (moving costs, lost wages, etc) and can recover attorneys' fees.

c. Detrimental reliance on such statements by an applicant who moves or quits an existing job can form the basis of an implied contract and subject the employer to similar damages.

2. Payment For Securing Employment

a. It is a misdemeanor for an employer or any agent of an employer to demand or accept payment (or any type of consideration or gratuity) from an employee for a job. Minn. Stat. § 181.031.

B. ADVERTISING FOR EMPLOYEES

1. The wording of any "help wanted" ads should be chosen carefully.

2. It is a violation of the Minnesota Human Rights Act to disclose a preference in an employment advertisement regarding sex, age, race, color, creed, religion, national origin, marital status, status with regard to public assistance, membership or activity in a local commission, disability, or sexual orientation.

3. Avoid ambiguous or misleading language that could imply discriminatory intent, such as "recent college grad" (implies bias based on age) or "girl Friday" (implies bias based on sex).

C. THE APPLICATION

1. Protected Classes

Race/Color. The Civil Rights Act, Title VII, prohibits employers from discriminating against an applicant based on race or color. This federal law applies to employers with 15 or more employees. The Minnesota Human Rights Act prohibits employers from discriminating against an applicant based on race and color as well. This Minnesota law applies to all employers.

Religion/Creed. The Civil Rights Act, Title VII, and the Minnesota Human Rights Act prohibit employers from discriminating against an applicant based on his or her religion or creed.

National Origin. The Civil Rights Act, Title VII, and the Minnesota Human Rights Act prohibit employers from discriminating against an applicant based on his or her national origin.

Sex – Including Pregnancy. The Civil Rights Act, Title VII, and the Minnesota Human Rights Act prohibit employers from discriminating against an applicant based on his or her sex, including pregnancy.

Marital Status – Including Identity of Spouse. The Minnesota Human Rights Act makes it illegal for an employer to discriminate against someone based on marital status – including identity of spouse.

Status with Regard to Public Assistance. The Minnesota Human Rights Act makes it illegal for an employer to discriminate against an applicant based on his or her status with regard to Public Assistance.

Disability. Essentially, an employer cannot fail to hire due to a disability if the individual can perform the essential functions of the job with or without reasonable accommodation. Applicable federal law is the Americans With Disabilities Act. This applies to employers with 15 or more employees. Another federal law, the Rehabilitation Act, applies to federal government, federal contractors, and recipients of federal financial assistance. The Minnesota Human Rights Act applies as well.

Age. The Age Discrimination and Employment Act makes it illegal for an employer to discriminate against someone based on their age (over 40). This federal law applies to employers with 20 or more employees. Also, the Minnesota Human Rights Act makes it illegal for an employer to discriminate against an applicant based on his or her age (over 21).

Sexual Orientation. The Minnesota Human Rights Act makes it illegal for an employer to discriminate against an applicant based on that person's sexual orientation.

Membership in Local Commission. The Minnesota Human Rights Act grants membership in a local commission protected class.

Citizenship. The Minnesota Human Rights Act makes citizenship a protected class.

Union Membership. The National Labor Relations Act applies to all employers and makes it illegal for an employer to discriminate against an applicant based on his or her membership in a union. Further, the Minnesota Labor Relations Act grants union membership protected class status.

Military Service/Obligation. The Uniformed Services Employment and Reemployment Rights Act makes it illegal for an employer to discriminate against an applicant based on their status as a member of the U.S. military.

Non-Work Activities: Consumption of Lawful Products. Minnesota Statutes Section 181.938 prohibits an employer from discriminating against an applicant based on his or her non-work activities.

2. The Written Job Application Form

a. The information requested should be reasonably related to the job for which the applicant is applying.

b. The application should not ask for information which might impermissibly reveal the applicant's status as a member of a protected class. Any such questions, i.e. questions inquiring into club memberships or civic organizations, should be followed by a disclaimer which states the applicant need not disclose any activities which might reveal membership in a protected class.

c. Standard, preprinted employment application forms must be carefully examined.

D. THE INTERVIEW

1. The employer should make sure all interviewers who participate in the interview process are familiar with what is appropriate and what is not appropriate.

2. Avoid making notations on application forms. Such notes can be misinterpreted.

3. Interviewers also should be trained not to make any oral or written representations to prospective candidates, e.g., "you'll have this job until you retire." Oral or written representations may reduce the employer's right to terminate an individual for a legitimate business reason. In order to substantiate that oral representations are not made during an interview, interviewers should take detailed notes.

4. Ask only questions which reasonably relate to the job in question. The employer must not request information that is not job-related or that might reveal an applicant's protected status. For example, the prohibition against asking direct questions about an applicant's race is clear. However, an employer should also avoid asking questions regarding an applicant's garnishment record, credit history and home or car ownership on the theory that consideration of these types of factors could have an adverse effect on minority applicants. Also, any questions regarding an applicant's eye or hair color should be avoided. Answers to these questions are not typically necessary to determine an applicant's ability to do a particular job.

5. If potentially "discriminatory" questions are asked, the employer subjects itself to liability for discrimination.

6. To the extent possible, the employer should avoid questions regarding the applicants':

• Age, date of birth or employment history further back than the previous five years;
  
  
• Marital status;
  
  
• Sex, race, creed, color, religion, national origin, or sexual orientation;
  
  
• Disabilities; and
  
  
• Date of military discharge. However, an employer may ask if the applicant is a military veteran.

• Do you have any children? Do you intend to have any?
  
  
• How many children do you have? How old are they? Who will care for them while you are at work?
  
  
• Are you married? What does your husband/wife think of all this?
  
  
• Whom can we contact in case of an emergency?
  
  
• Have you ever tested HIV positive?
  
  
• What does your husband/wife do? Is your husband/wife a union member? How likely is it that your husband/wife will accept a job in another city?
  
  
• How old are you?
  
  
• What year(s) did you graduate from (attend) high school? College?
  
  
• How would you feel about taking orders from someone younger than you?
  
  
• Have you ever been treated for any of the following diseases or conditions?
  
  
• What languages are spoken in your home?
  
  
• Do you have a good credit rating? Have your wages ever been garnished?
  
  
• Do you have any physical impairments which would prevent you from performing the job for which you are applying?
  
  
• Are you now receiving or have you ever received workers' compensation benefits?
  
  
• How much do you weigh? How tall are you?
  
  
• What is the lowest salary you will accept?
  
  
• Do you smoke?
  
  
• Have you ever been hospitalized? If so, for what condition?
  
  
• Have you ever been treated by a psychiatrist or psychologist? If so, for what condition?
  
  
• Have you ever been treated for any mental condition?
  
  
• Is there any health-related reason you may not be able to perform the job for which you are applying?
  
  
• How many days were you absent from work because of illness last year?
  
  
• Are you taking any prescribed drugs?
  
  
• Have you ever been treated for drug addiction or alcoholism?

• Why are you interested in this type of work?
  
  
• Why would you like to work here?
  
  
• Describe your education.
  
  
• What jobs did you hold?
  
  
• What will your supervisor at _______ tell me about your performance?
  
  
• Why did you leave ________?
  
  
• What did you do well at _______?
  
  
• Where was there room for improvement?
  
  
• Have you ever been discharged or asked to resign from any job?
  
  
• What experience have you had that will help qualify you for this job?
  
  
• Do you have other abilities that will help you perform this job?
  
  
• What positive things will you bring to this position?
  
  
• Do you have all licenses and certifications necessary to do the job?
  
  
• Are you willing to travel as required?
  
  
• Who can I talk to for more information about your past job performance?

1. The applicant has first received an offer of employment contingent only upon passing the physical;
   
   
2. The physical examination tests only for essential job-related abilities; and
   
   
3. The physical is required of all persons conditionally offered employment for the same position, regardless of disability (except for examinations authorized under Minnesota's workers' compensation law)
   
   
4. Information must be kept confidential.

1. The test must measure only essential job-related abilities.
   
   
2. The test must be required of all applicants for the same position regardless of disability.
   
   
3. The test must accurately measure the applicant's aptitude, achievement level or other relevant factors and may not reflect the applicant's impaired sensory, manual or speaking skills except when those skills are what is being tested.
   
   
4. If a pre-employment test tends to screen out individuals with disabilities on the basis of those disabilities, under the ADA the test must be job-related and consistent with business necessity.
   
   
5. Employers testing applicants with impaired sensory, manual or speaking skills (when those skills are not what is being tested) must reasonably accommodate those applicants in the testing process. Such reasonable accommodation may mean, e.g., giving an oral test to an individual with dyslexia or providing extra time to take a test to a person with a visual impairment or learning disability. Reasonable accommodation is not required, however, if the employer does not know of the impaired sensory, manual or speaking skills before the test is given.

1. Verify the applicant's title, dates of employment, last wage/salary.
   
   
2. What were the typical job duties and responsibilities of applicant?
   
   
3. How would you compare applicant's performance to others in the same position?
   
   
4. How well did the applicant respond to management direction?
   
   
5. What key strengths did you observe in the applicant's job performance?
   
   
6. What limitations or development needs did you identify?
   
   
7. How would you rate the applicant's attendance, dependability, ability to assume responsibility, degree of supervision required, interpersonal relationships with peers, interpersonal relationships with supervisor?
   
   
8. Why did the applicant leave?
   
   
9. Is the applicant eligible for rehire?

• Describe terms and conditions of employment as the company understands them.
  
  
• Indicate that the written offer letter supersedes any oral promises.
  
  
• If the employment will be "at will," that is, terminable by either party at any time, the letter should not include an annual salary; it should include a payroll period amount, e.g., weekly or semi-monthly, that is annualized at a rate of "X." This will insure that the offer is not construed to be for a one-year term.
  
  
• To insure that the offer letter will not be interpreted as a binding employment contract, the employer is advised to have the letter reviewed by legal counsel before it is sent.

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