Same Rules Cover What Recruiters and Bosses Can Ask

Q I understand which questions are fair grounds for prospective job candidates and which are not, but are there any restrictions for professional recruiting services or “headhunters” or executive search firms? What is legal or illegal with respect to these headhunting organizations, since technically they are not going to be the prospective employers?

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A In California, there are essentially two basic sources of legal limitation on what an employer can and cannot ask of prospective employees: 1) federal and state laws prohibiting employment discrimination and 2) the right of privacy contained in the California Constitution. In general, these are as applicable to employment agencies (businesses that procure employees or opportunities to work) as they are to employers. Therefore, the same restrictions on pre-employment inquiries apply to such businesses as well as employers, and they are not entitled to any greater leeway than are employers in terms of the questions they may ask prospective employees.

--Michael A. Hood Employment law attorney, Paul, Hastings, Janofsky & Walker

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Arbitration Clause Can Be Compelling

Q I am seeking insight into the latest trend in resolving workplace disputes through private arbitration.

I am a non-union employee and have filed a discrimination charge against my employer. I plan to litigate my charges in state court. My employer has informed me that since I signed a mutual agreement to arbitrate claims at the time of my initial employment, I am bound by this agreement and must submit my charges to arbitration.

Can my employer mandate that I waive my rights to a court and jury proceeding? The employment application has the following stipulation: “Your employment is contingent on signing the mutual agreement to arbitrate claims.”

--T.J., Anaheim *

A Yes, you can be compelled to arbitrate any employment claims, including discrimination charges, if you signed an agreement with your employer providing for such arbitration.

Numerous courts have approved these types of agreements recently. The way the law looks at it, your employer had no legal obligation to offer you employment in the first place, and you created a valid and binding contract when you accepted a job offer that included an arbitration agreement as a condition of employment.

Some courts have denied enforcement of general arbitration agreements that do not specifically refer to employment or discrimination claims, and you should review the language of the agreement you signed in this regard. But if your employment was made contingent upon your signing the agreement, the document most likely covers employment claims.

You will still get a full and fair hearing of your claim in arbitration. Unlike in a jury trial where you might expect to rely on jury sympathy, however, in an arbitration proceeding your claim is more likely to be judged strictly on its merits.

On the other hand, you will likely get a faster resolution of your claim in arbitration than if you had to make your way through the crowded court system.

--James J. McDonald Jr. Attorney, Fisher & Phillips Labor law instructor, UC Irvine

Birthday Party Idea Is Taken as a Threat

Q A benevolent manager wanted to reward his employees by celebrating their birthdays at work. He sent out a memo requesting that all employees send him an e-mail memo informing him of their date of birth.

An employee took this the wrong way and threatened to sue for age discrimination for “demanding” that employees disclose their ages. What do you think? Will the employee have grounds for a lawsuit?

--W.R., Anaheim *

A This scenario clearly illustrates what can happen because of miscommunication and mistrust in organizations. That is why it is so important that people --managers in particular--be as clear and open as possible when communicating with others. If this manager had clarified his memo by giving the reason behind the request, it might have prevented the problem.

An even better strategy would have been for the manager to communicate his intentions to employees while soliciting their approval or disapproval of the idea, before implementing it.

The possibility of claims of age discrimination could have also been avoided if the manager had simply asked for birth months and days, but not years. Given the managers’ true intentions, the employee doesn’t have any real grounds for a lawsuit.

--Ron Riggio

Professor of industrial psychology Cal State Fullerton