Pre-employment physical exams are not allowed unless a conditional job offer has been made to the applicant? Click here for a helpful guide to pre-employment questions and medical examinations.
EMPLOYMENT LAW TIPS PART 1
BY: Neil L. Wojtal
This is Part 1 in a series of postings that are designed to help small businesses without human resource staff to perform a self audit of their entire personnel cycle from interviewing through termination. Since our firm practices in Wisconsin, the tips contained in these postings refer to Wisconsin law and all of the resource links cited are Wisconsin resources. Of course this is general information and should not be considered legal advice. No attorney -client relationship exists between our firm or anyone reading this blog posting.
I. HIRING PRACTICES
The first step in the audit process is the examination of your hiring practices.
A. Required Posters: A good place to begin is by determining whether you are complying with the Wisconsin and federal posting requirements. Employers are required to display, in a conspicuous place where employees are most likely to view them (which may include multiple work-sites) an array of federal and state employment posters. The state and federal posters can be downloaded from the Wisconsin Department of Workforce Development website at http://www.dwd.state.wi.us/dwd/posters.htm. The chart on the website explains which posters must be displayed depending on the size of your workforce and type of business.
B. Job Applications/Interview Process: The next step is to review your job application and interview procedures to determine whether you are asking any questions that violate either state and/or federal law. Many employers use standardized job applications which are outdated and which contain questions now prohibited under state and federal law. For example, many applications still contain questions concerning past workers' compensation claims, disabilities or handicaps. All employers should obtain a copy of the DWD pamphlet entitled "Fair Hiring and Avoiding Discriminatory Interview Questions". This pamphlet is available in electronic form:
http://dwd.wisconsin.gov/dwd/publications/erd/pdf/erd_4825_p.pdf. This pamphlet is the first in a series that covers many employment related laws. The individual pamphlets in the series are listed at the bottom of the web page and can all be downloaded to your computer. Your investigation should also determine whether you are complying with the federal Americans with Disabilities Act ("ADA") with respect to pre-employment physical examinations or questionnaires. A key point of the ADA is that pre-employment physical exams are not allowed unless a conditional job offer has been made and the exam is either given uniformly to all employees in the same job category or due to business necessity. The U. S. Equal Employment Opportunity Commission ("EEOC") has helpful information on their website addressing pre-employment questions and medical examinations in addition to all forms of discriminatory conduct prohibited under federal law. The website is:
C. Fair Credit Reporting Act Compliance: Some employers may routinely obtain background reports on job applicants, including credit reports. If this information is obtained from a third party, an employer needs to be aware of the requirements contained in the federal Fair Credit Reporting Act (FCRA) administered by the Federal Trade Commission. The FCRA provides for specific procedures and forms that employers must use in obtaining credit reports about job applicants from third party sources. The FTC has resources available on their website that explains the requirements. Go to http://www.ftc.gov/, on the bar at the top highlight "Consumer Protection" and "Business Information" will appear below. Click on "Business Information" and you will be taken to the Bureau of Consumer Protection Business Center. Search "Using Consumer Reports" and you will see the explanation of the use of consumer reports in the hiring process.
D. WT-4 Forms: There are a number of forms which employers must complete as part of the hiring process. Wisconsin employers are required to have employees complete the WT-4 form if the number of exemptions claimed for Wisconsin tax purposes are different from those claimed on the employee's federal W-4 form. In addition, a Wisconsin employer must file the WT-4 form with the Department of Workforce Development. This form contains information that assists the state in the collection of unpaid child support. The WT-4 form can be found on-line at:http://www.revenue.wi.gov/forms/with/w-204f.pdf.
Part 2 of this series will appear in a future post.
This blog is designed for general information purposes only and should not be construed to be formal legal advice. You should consult an attorney for advice regarding your own situation. Although great care has been taken to ensure the accuracy and utility of the information contained in this blog, no warranty is made, express or implied, and Zimmerman & Steber Legal Group, LLC assumes no liability in connection with any use or result from use of the information contained herein.
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