Watch Your Language: Attracting Job Candidates without Violating the Law

The Equal Employment Opportunity Commission (EEOC) recently brought a lawsuit against a national restaurant chain for a job announcement that stated that only females would be considered for temporary summer positions at a Utah resort, with employer housing included. The company rationale appears to be that the chain did not want to provide separate housing options for men and women. The case garnered national attention.

According to the EEOC’s lawsuit, a male employee from another state wanted the chance to apply for the job to earn more money at a summer resort, but the job ad stated only females would be considered and the restaurant, in fact, selected only women for those summer jobs.

Legal Protections

Generally, under state and federal law, employers can’t use recruiting practices that discriminate against any protected class. Employers need to consider these laws when placing any job ad.

It’s illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of any characteristic protected by state or federal law, including race, color, religion, gender, sex, sexual orientation pregnancy, childbirth, national origin, ancestry, age (40 or older), disability, genetic information, medical condition and marital status.

There are other more subtle issues. For instance, unless truly a requisite of the job, posting that a driver’s license is required can lead to unfair immigration practice claims or national origin or disability discrimination claims. Since the beginning of 2015, it’s a violation of FEHA, and considered national origin discrimination, to take adverse action against individuals who possess an AB 60 driver’s license issued to undocumented persons who meet specific requirements.

BFOQ a Rare Defense

There is a very narrow exception when a BFOQ, or bona fide occupational qualification, exists. A BFOQ is a characteristic that employers are allowed to consider when making hiring decisions, even though, in other contexts, these characteristics would be considered discriminatory. For instance, in certain situations, personal privacy may justify a BFOQ where the job requires an employee to observe individuals in a state of nudity.

On the other hand, if it’s an essential function of the job that the employee regularly moves heavy equipment, you can’t rule out women for the job based on a stereotype that males are physically stronger than females. It is NOT a BFOQ that the employee be male. The job advertisement should simply state: “Position requires moving equipment weighing up to 50 lbs.”

A BFOQ based on a protected class is extremely rare. Customer preference is never a BFOQ. Consult legal counsel before ever listing a protected class, such as gender or religion, as a job requirement.

Phrases That Can Discriminate

In the case described above, the job ad from the restaurant chain stated an explicit preference — women only — based on a protected class. But oftentimes, a job ad uses more subtle language that can still land the employer in hot water for violating anti-discrimination laws.

For instance, some companies have run into problems for posting openings exclusively for “recent” or “new” graduates — a trend that many say has been prevalent in the tech industry. The EEOC takes the position that this type of job advertisement is illegal and may discourage people over 40 from applying from the job, since the pool of “recent graduates” is more likely to be in their 20s than in their 40s or older.

Another restaurant company was recently hit by an EEOC lawsuit for age discrimination because older applicants were told that the restaurant desired a youthful image or was looking for “fresh” employees. A more blatant allegation in the EEOC charge was that applicants were told the restaurant “wasn’t looking for old white guys.”

Walking the Line

In most situations, the employer does not actually want only 20-year-olds to apply for the job but is trying to point out that the position is really entry level or that a college degree is required but no prior work experience. If so, those are the words that an employer should use.

Employers need to be careful. It is often a fine line. Here are some examples:

Do Use Do Not Use
Enthusiastic salesperson Young and energetic salesman
Food server Waitress
Repair person Repairman
Travel Required Perfect for a single person willing to travel
Ability to telecommute Great for stay-at-home moms
Responsible Mature person wanted

The number of charges filed with the EEOC relating to discriminatory advertising is increasing. For Fiscal Year 2014, 111 charges of discriminatory advertising alleging age discrimination were filed, compared to only 37 such charges in Fiscal Year 2013.

Look Out for Pictures and Other Graphics, Too

If pictures or drawings of people are part of your job advertisement, try to feature a balanced representation of typical employees, including minorities, women and people with disabilities. Look at your website and internal postings, not just any “for-print” job ads. Thinking that these graphics can’t get you into trouble is a mistaken assumption.

In the fall of 2014, a large restaurant chain agreed to pay $1.3 million to settle a race discrimination case. The EEOC charged the restaurant with engaging in a pattern and practice of race discrimination against African-American job applicants by refusing to hire them for front-of-the-house positions.

As part of the lawsuit, the EEOC charged that the job posting on its website contained visual depictions of employees “that expressed a preference for non-black workers to the ordinary reader.”

Employers should also be careful that the pictures they use to advertise a job do not perpetuate stereotypes — such as pictures showing only female nurses or only male mechanics.

Best Practices

  • Familiarize yourself with HRCalifornia’s Guide for Pre-Employment Inquiries
  • Watch out for any statements in your job ads that can negate the at-will relationship (e.g., “looking for long-term commitment” or “this is a secure position”)
  • Include a statement in any job advertisement noting that you are an “Equal Employment Opportunity Employer”

Court Rules Against Second Meal Break Waiver in Health-Care Industry

In a recent case involving the health-care industry, a California court of appeal penalized an employer that relied on a Wage Order provision relating to waiving a second meal break for shifts longer than 12 hours.

Employees in the health-care field often work 12-hour-plus shifts and may want to waive their second meal period so they can leave 30 minutes early.

Background

Three health-care workers filed a class action lawsuit against Orange Coast Memorial Medical Center (hospital). The employees claimed the hospital maintained an illegal policy that let health-care employees waive their second meal periods on shifts longer than 12 hours. The employees claimed they usually worked 12-hour shifts, but from time to time worked shifts longer than 12 hours.

The hospital’s policy allowed health-care employees who worked shifts longer than 10 hours caring for patients to voluntarily waive one of their two meal periods, even if the shifts lasted more than 12 hours. The employees stated that they all signed second meal period waivers and occasionally worked shifts longer than 12 hours without being provided a second meal period. The hospital argued that the employees had no claim because they all signed valid meal period waivers.

Conflicting Laws

The hospital relied on Wage Order 5 section 11(D) which allows waivers of the second meal break for health-care workers who work shifts longer than eight hours. However, the problem is that Labor Code section 512 authorizes waivers of the second meal break only if the shift can be completed in 12 hours or less.

Labor Code Section 512(a) provides in pertinent part:

“An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.” (emphasis added)

The main issue before the court was whether the Wage Order provision is valid. The court concluded that because the Wage Order is inconsistent with the Labor Code and exceeded the limits of the law, the portion of the Wage Order provision that authorizes health-care workers to waive their second meal periods on shifts longer than 12 hours is not valid.

Furthermore, the broad powers granted to the Industrial Welfare Commission (IWC) do not extend to the creation of additional exemptions from the meal period requirement beyond those provided by the Legislature in Labor Code section 512.

The court agreed with the employees that the IWC, which enacted all Wage Orders, exceeded its authority by enacting section 11(D) because that section created an additional exception for health-care workers, beyond the second meal period waiver exception in Labor Code section 512(a) (Gerard v. Orange Coast Memorial Medical Center, 2015 WL 535730).

The employee who works more than 12 hours can’t waive the second meal period. For shifts between 10-plus hours and up to 12 hours, a waiver of the second meal period would still be valid under Labor Code section 512.

The court found that the hospital was liable for one hour of premium pay for the missed meal break, even though the hospital relied on a valid Wage Order and no court had previously said the employer could not rely on that Wage Order.

The appellate court also overturned the lower court’s finding that class certification was not appropriate. The appellate court found that there are triable issues regarding the employees’ contentions that they worked numerous shifts longer than 12 hours, skipped the second meal period and did not receive premium pay.

Best Practices

  • Know what Wage Order(s) pertain(s) to your business and review the provisions
  • Have a clear meal and rest break policy in place
  • Ensure legal counsel has reviewed your policies and procedures regarding meal and rest breaks
  • Always review your legally compliant policy before approving waivers of meal breaks

Obtain all waivers in writing and maintain copies