NECA Recommended Hiring Guide

Whether you are looking for employees at a job fair, in response to a job posting, or
potential employees visit your place of business unsolicited inquiring about employment, hiring
the most qualified employees is of utmost importance to every business organization. The key to
finding the most qualified employees is to ask the right questions and obtain the most relevant
information as to whether the applicants can perform the job in question. In obtaining this
information, you must be cognizant of certain legal parameters.

This guide is geared solely towards the hiring of individuals for electrical positions
within the bargaining unit. However, certain general principles expressed in this guide (by way
of example only, permissible and not permissible interview questions, the determination of
essential job functions, general guidelines regarding disability-related questions and medical
exams, arrest and conviction records, and salary history prohibitions) apply to all categories of
employees. Fitness-for-duty issues, however, do not apply to positions such as office or clerical
employees.

As you will likely take away from this guide, the hiring process for employees is
extremely complicated and regulated. This guide is merely an overview of certain issues related
to the hiring process. It is not and cannot be deemed comprehensive to cover every situation or
every question you may have. This guide does not constitute a legal position and should not be
relied upon as legal advice. We recommend that you consult with competent legal counsel
before implementing any of the provisions of this guide or before revising your hiring processes.

The Interview

Typically, your first substantive interaction with an applicant will be during an interview.
While some interviews are more informal than others, you need to approach the interview with a
keen focus on obtaining only information relevant to the position. Thus, all questions asked
during an interview should be focused on the job and the tasks necessary to perform the job, as
the discussions which occur during the interview may lead to legal claims and even possibly
legal liability. The following are some general tips to keep in mind for the interview process in
an attempt to minimize legal risk:

 Train any manager or supervisor who will be interviewing applicants concerning what is
and is not appropriate to discuss with an applicant

 Write down in advance the questions that will be asked during an interview for each
position

 Be sure that all questions asked during an interview are tied to the functions of the
position for which the individual is applying

 Ask the same questions of all individuals applying for the position

 Stick to the script – remain focused on the questions that you have prepared in advance

1
 During an interview, you should avoid all questions related to any protected
characteristics.1 Under federal law, such protected characteristics include sex/gender, age,
national origin, race, marital status/children, color, religion, disability, and citizenship. Most
state and local jurisdictions have added to this list of protected characteristics to include, among
other things, genetic information, political affiliation, matriculation, and sexual orientation. In
addition, while the federal statute protects against age discrimination for individuals age 40 and
over, some state and local jurisdictions have enacted a lower threshold. In the District of
Columbia, for example, the D.C. Human Rights Act protects against age discrimination for
individuals age 18 and over.

Currently, there is no consensus as to whether sexual orientation is protected under

federal law and the issue is being litigated in the courts. Attorney General Jeff Sessions has
stated that the federal discrimination law does not protect on the basis of gender
identity/transgender. Accordingly, this is an area that needs to continue to be monitored.
Regardless of the outcome, however, you must be knowledgeable as to the protected
characteristics in the states and local jurisdictions where you have operations as greater
protection is often found at the state and local level.

Oftentimes during an interview liability attaches based on the way in which a question is
asked. The following are some examples of permissible and not permissible questions:

NOT PERMISSIBLE PERMISSIBLE

What is your date of birth? What year were If hired, can you provide proof that you are of
you born? What year did you graduate high legal age to work in the United States?
school?

Where were you born? Where were your If hired, can you provide documentation that
parents born? Of what country are you a you are legally authorized to work in the
citizen? Are you a U.S. citizen? United States?

What religion are you? What You may be required to work Saturdays
church/synagogue do you attend? What and/or Sundays in this job. Are you able to
holidays do you observe? do so?

What is your native language? What is your

nationality? What is your ancestry?

Are you married? Are you pregnant? Do you This job requires you to work between the
plan to have children? hours of X and Y. Can you work those
hours?
1
If you are a federal contractor subject to Executive Order 11246, the Vietnam Era Veterans’ Readjustment
Assistance Act (“VEVRAA”), or Section 503 of the Rehabilitation Act, and meet certain qualifications, you need to
collect certain data at the applicant and employee phase. At the applicant phase, this data should be collected via an
addendum to your written job application, which should be removed from the job application upon submission and
not shared with the individual(s) making the hiring decision.

2
 Are you able to work overtime, if necessary?

Do you own a car to enable you to get to

work?2

Are you handicapped? Do you have a
disability?
Have you ever been injured on the job? What
is your workers compensation history?
Are you capable of performing the essential
functions of this position with or without a
reasonable accommodation?3

How many work days did you miss last year

due to injury/illness?

Pre-Employment Disability-Related Questions and Medical Exams under the ADA

In 1995, the Equal Employment Opportunity Commission (“EEOC”) issued guidance

regarding pre-employment disability-related questions and medical examinations under the
Americans with Disabilities Act (“ADA”).4 This guidance covers the pre-employment phase –
i.e., pre-offer and after a conditional offer has been made but before the individual has started
work. While the ADA covers employers with at least 15 employees, many states have statutes
which prohibit discrimination based on disability which cover employers with fewer than 15
employees. Regardless of whether you are covered by the ADA, the best practice is to follow
the EEOC guidance.

In general, the EEOC guidance provides that an employer can only ask disability-related
questions and require medical examinations of applicants after making a conditional offer of
employment provided that the employer asks the same questions/conducts the same
examinations for all individuals entering into that job category. A “disability-related question” is
generally any question likely to elicit information about a disability, which is generally defined
as a physical or mental impairment that substantially limits a major life activity. Accordingly, in
the pre-employment phase, an employer cannot ask whether an individual has a particular
disability and cannot ask questions closely related to a disability. An employer, however, can
ask about an impairment so long as the question is not likely to elicit information about a
disability. A “medical examination” is a procedure or test which solicits information about an
individual’s physical or mental impairment or health, such as a blood pressure test. In its
guidance, the EEOC has set forth a number of factors to consider in determining whether a
procedure or test constitutes a “medical examination.”

2
The relevant inquiry is whether the applicant has the ability to arrive for work on time. It does not matter the
means by which he/she does so.
3
You cannot require an applicant to choose whether he/she can perform the essential functions either with or
without an accommodation, as requiring the applicant to choose may tend to reveal whether the applicant has a
disability.
4
In 2000, the EEOC issued guidance regarding disability-related inquiries and medical examinations of employees
under the ADA. This guide only addresses pre-employment / hiring issues.

3
 A. Pre-Offer

Under the EEOC guidance, you cannot ask disability-related questions or require a
medical examination in the pre-offer stage. However, you are permitted to do the following:5

 Ask an applicant about his/her ability to perform specific job functions

 Ask an applicant about non-medical qualifications and skills – for example, certification
or licensure

 Ask an applicant to describe or demonstrate how he/she would perform a particular job
task provided that this request is made of all applicants in the job category

Attendance Questions

Employee attendance is an ever-growing problem for all employers and you cannot run
your operations if employees do not arrive for work. Attendance at work is, therefore, an issue
of high importance when considering a candidate for a position.

The EEOC has provided the following guidance concerning what you can and cannot ask
in an attempt to ascertain information about an applicant’s attendance:

 You can describe for an applicant the attendance requirements of the position and
inquire whether the applicant can meet those requirements

 You can ask an applicant how many days he/she was absent from his/her last
position but you cannot ask about the number of days the applicant was sick, as
such an inquiry may lead to information about a disability

 You cannot ask about job-related injuries or workers compensation history

 You cannot ask what medications an applicant is currently taking, as that inquiry
may also likely lead to information concerning a disability

Drug and Alcohol Questions

5
The ADA requires employers to provide “reasonable accommodations” to employees with disabilities so that such
employees can perform the essential functions of the position. Please note that this duty to provide a reasonable
accommodation also applies during the application process. The issue of reasonable accommodation is not
addressed in this guide.

4
 We read on an almost daily basis about the drug and alcohol epidemic that is facing this
country. What many may not realize is how the federal law treats drug and alcohol use and
addiction and what protections are afforded.

A current illegal drug user is not afforded protection under the ADA. There is no bright
line rule for when illegal drug use is deemed “current.” Past drug addiction, on the other hand, is
considered a disability under the ADA and, thus, individuals who are past drug addicts are
entitled to protection under the law. Likewise, alcoholism is a protected disability under the
ADA.

Thus, the EEOC has set forth the following guidelines concerning what you can and
cannot ask applicants in the pre-offer stage about drug and alcohol use, including:

 You can ask about current illegal use of drugs

 You can ask about prior illegal use of drugs but not about prior drug addiction.
Thus, you can ask questions such as “have you ever used illegal drugs” and
“when was the last time you used illegal drugs,” but you cannot ask questions
such as “how often did you use illegal drugs,” “have you ever been addicted to
illegal drugs,” or “have you ever been treated for drug addiction or abuse.”

 You cannot ask about lawful drug use (i.e. “what medications are you taking” or
“have you ever taken XX medication”) but you can ask about lawful drug use if
an applicant tests positive for illegal drugs in an effort to validate the test results

 You can ask an applicant about alcohol unless doing so will reveal information
regarding alcoholism. Thus, you can ask an applicant whether he/she drinks
alcohol and whether he/she has ever been arrested for DUI, but you cannot ask
questions regarding how much an applicant drinks or whether he/she has ever
been in alcohol rehabilitation.

Medical Examinations

In the pre-offer stage, the EEOC provides the following general guidance regarding
medical examinations:

 Employers can require physical agility tests (i.e., ask applicants to demonstrate
job functions)6

 Employers can require physical fitness tests, as long as such test is not a medical
examination

 Employers can test applicants for current illegal drug use7

6
Again, while not a subject of this guide, please keep in mind that you are required to provide reasonable
accommodations during the application phase.
7
Be sure to also be aware of any state law requirements.

5
  Employers cannot give applicants an alcohol test, as the EEOC considers such
test to be a medical examination

Applying these general principles, the following are some examples of what you can and
cannot require of an applicant:

 You can measure an applicant’s ability to lift, but you cannot take his/her blood
pressure after doing so

 You can ask an applicant to read safety labels and warnings or ask an applicant to
distinguish between wire colors, as part of a demonstration of the job, but you
cannot ask the applicant to read an eye chart or go for an eye exam by a physician

With respect to drug testing, we recognize that many chapters have locally negotiated
substance abuse testing programs. The guidelines and parameters set forth herein are what is
permissible under the ADA, but please be sure to also conform to your collective bargaining
agreements and locally negotiated agreements/programs in this regard. We encourage you to
work with your chapter managers to ensure you are aware of any locally negotiated agreements
which may impact these rights.

B. Post-Offer

This section summarizes what is and is not permissible under the ADA guidance in the
post-offer stage – i.e. after a conditional offer of employment has been made but before the
individual has commenced work.

In order to fall within this stage, the conditional offer must be legitimate, meaning that
you have evaluated all of the relevant non-medical information concerning the applicant and
deem the individual qualified for the position. The conditional offer, however, need not be
limited to a current vacancy; it can be for openings that you reasonably anticipate will be
available.

In this post-offer stage, you can ask disability-related questions and perform medical
examinations on the following conditions:

 You must ask the questions or conduct the examination of all entering employees
in the same job category

 You must keep the medical information confidential,8 subject to certain

exceptions which include but are not limited to the following: (a) you may
disclose to supervisors/managers with a need to know information concerning
restrictions on an employee’s work duties and necessary reasonable
accommodations; (b) first aid and safety personnel may be informed about an
8
Medical information should not be kept in an employee’s personnel file or an applicant’s file; it should be kept in a
separate confidential file.

6
 individual’s disability if the individual may require emergency treatment; (c)
government officials investigating compliance with the ADA must be provided
relevant information upon request; (d) employers are permitted to disclose
information to workers compensation offices, second injury funds, and workers
compensation insurance carriers in accordance with state workers compensation
laws; and (e) employers are permitted to use the information for insurance
purposes

Accordingly, at this stage, you can ask an individual about prior workers compensation
history, prior sick leave usage, illnesses/diseases/impairments, and general physical/mental
health. If the questions you ask or examinations you perform screen out an individual because of
a disability, you must be able to demonstrate that your rejection of the individual is “job-related
and consistent with business necessity.” If the questions you ask or examinations you perform
screen out an individual for safety reasons, you must be able to demonstrate that the individual
poses a “direct threat” to himself or others.

Fitness for Duty

As long as you comply with the above guidelines under the ADA as to what you can
ask/require of an applicant pre-offer and post-conditional offer, you can implement fitness-for-
duty requirements.9 A fitness-for-duty is an effective way to ensure you are hiring individuals
who can perform the essential functions of the job. The “essential” functions of a position are the
fundamental duties of the position in question. A job function may be deemed essential if, for
example, there are a finite number of employees amongst whom that function can be distributed,
the position exists in order to perform that function, or the function is highly specialized such
that the individual was/is hired based on his/her expertise in performing the function. In
determining whether particular functions are essential, the following factors can be considered:

 The employer’s opinion concerning which functions are essential;

 The job description for the position at issue;
 The amount of time an individual spends performing a function;
 The consequences of not performing the function;
 The terms of a collective bargaining agreement; and
 The current and past work experience of incumbents in the position.

Typically, fitness-for-duty will assess an applicant’s ability to perform job-related

physical tasks (e.g., lifting a certain amount of weight, climbing a ladder, etc.) and technical
skills (e.g. wire panel boards, etc.). The fitness-for-duty test must accurately reflect the essential
functions of the job, and should produce repeatable and consistent results. Thus, it is imperative
that job descriptions for every position be accurate, comprehensive, and up-to-date. The job
description must be specific to the performance of the actual position within your company.

9
This is not a comprehensive guide as it relates to fitness-for-duty tests and does not address issues such as whether
fitness-for-duty is a mandatory subject of bargaining or the validation of fitness-for-duty tests (i.e., specific methods
by which an employer can demonstrate that its test is job-related and consistent with business necessity, such that
the test itself, its administration, or the employer’s action upon the results is not “designed, intended or used” to
discriminate against individuals based on protected characteristics).

7
Employers should use a third party vendor for fitness-for-duty testing, and should convey to the
third party vendor the essential functions of the job as well as provide the third party vendor with
a copy of the relevant job description.

While such tests are permissible under the ADA provided the guidelines above are
followed, employers must be careful that such tests are not used to discriminate against
individuals based on any protected characteristic and that the tests do not disproportionately
exclude individuals in protected classes.

Impact of Collective Bargaining Relationship

NECA has consistently taken the position that testing of applicants for any purpose is a
non-mandatory subject of bargaining simply because a person’s wages, hours, and terms and
conditions of employment do not become a matter for collective bargaining until after that
individual is hired. We recognize that the IBEW may have a different point of view.
Notwithstanding this legal issue, as a permissive subject of bargaining, employers (including
multi-employer bargaining associations) are free to negotiate terms and conditions relating to
pre-employment testing. If your Chapter has negotiated limitations upon a contractor’s right to
establish its own ground rules for such testing, then each employer in the multi-employer unit
must follow those requirements.

If there are state or local laws that may impinge upon the collectively bargained program,
you will need to examine whether those laws permit parties to negotiate terms that supersede
such laws or regulations. It is for this reason as well that we strongly urge you to utilize
competent employment counsel to insure that your hiring policies pass legal muster.

Arrest and Conviction Records

In 2012, the EEOC issued guidance concerning the consideration of arrest and conviction
records.10 Pursuant to this guidance, you cannot exclude an individual from a position based
solely on the fact of an arrest, but you can make an employment decision based on the
underlying conduct if it renders the individual unfit for the position.

As it relates to convictions, the EEOC recommends that you not ask about convictions on
a job application (see discussion below regarding “Ban the Box”). The EEOC further
recommends that when, and if, you ask about convictions, you ensure that your inquiry is limited
to convictions which are job-related to the position at issue and consistent with business
necessity. The EEOC takes the position that one way in which to demonstrate that an exclusion
based on a conviction is job-related and consistent with business necessity is for the employer to
assess whether there is a connection between the criminal conduct and the position at issue, by
examining the nature of the crime, the amount of time that has transpired since the crime, and the
nature of the position. The EEOC further recommends that the employer provide the individual
with notice and an opportunity for the individual to demonstrate why the conviction should not
disqualify the individual from the position at issue.

10
If you use a third party to conduct background checks, you must comply with the Fair Credit Reporting Act.

8
 Ban the Box

A number of state and local jurisdictions have enacted “ban the box” legislation,
prohibiting employers from asking about convictions on a job application. The states/local
jurisdictions which have enacted such legislation covering private employers include:11

California Los Angeles, CA

Connecticut San Francisco, CA
Hawaii Chicago, IL
Illinois Baltimore, MD
Massachusetts Montgomery & Prince George’s County, MD
Minnesota Columbia, MO
New Jersey Buffalo, New York City & Rochester, NY
Oregon Portland, OR
Rhode Island Philadelphia, PA
Vermont Austin, TX
Washington, DC Seattle, WA

The following is a sampling of the provisions contained in these various statutes:

 Some legislation only applies to employers with a certain number of employees

 Some legislation prohibits employers from asking about or considering

erased/expunged records or pardoned convictions

 Some legislation contains limitations on what can serve as the sole basis for a
discharge

 Some jurisdictions allow an employer to inquire about convictions after an

interview or after a conditional offer of employment has been made

 Some legislation contains time limitations on how far back an employer can
inquire

 Some legislation requires that an individual be provided with an opportunity to

explain the conviction, and that an individualized assessment be conducted
similar to that recommended by the EEOC in its guidance

 Some legislation provides for a right of appeal by the individual

 Some legislation provides for misdemeanor criminal charges and fines in the
event of a violation

11
Sources: National Employment Law Project, Ban the Box Guide, August 2017, Beth Avery and Phil Hernandez;
California AB 168.

9
  Some legislation provides the individual with a private right of action (meaning
the individual can sue the employer in court for a violation) and allows the
individual to recover his/her attorneys fees if he/she proves a violation

Each of these laws contain particular nuances, so you must be familiar with any legislation in
effect in the jurisdictions in which you operate.

Salary History Ban

The latest trend developing at the state and local level is legislation prohibiting employers
from inquiring and/or relying upon an individual’s compensation history at places of prior
employment to determine whether to hire an individual or to establish the individual’s
compensation. The purpose behind such legislation is to combat pay inequities.

The following jurisdictions have enacted salary history bans, and other state/local
jurisdictions are likely to do so:12

Puerto Rico (effective March 8, 2017)

Oregon (effective October 6, 2017)
New York City (effective October 31, 2017)
Delaware (effective December 14, 2017)
Massachusetts (effective July 1, 2018)
San Francisco (effective July 1, 2018)
California (effective January 1, 2018)

As with the Ban the Box legislation, the legislation in this area varies by jurisdiction so
you must be familiar with the legislation in the jurisdictions in which you operate. A sampling
of the various provisions follows:

 The definition of “inquire” varies by jurisdiction. Some legislation prohibits an

employer from inquiring about salary history directly from the applicant. Some
prohibit the employer from inquiring from the applicant’s prior employer, and
some prohibit the employer from inquiring from current/former employees of the
applicant’s prior employer

 You need to be familiar with the categories of employees covered by the

legislation – i.e., does the prohibition apply to full-time, part-time, temporary, or
seasonal employees; does it apply to employees obtained via a staffing agency?

 Look at the definition of compensation or salary. Does it include benefits or

fringe benefits?

12
The District of Columbia has legislation pending before the D.C. Council. Legislation in New Jersey and Illinois
was vetoed by the respective governors. Legislation was passed in Philadelphia but is currently being challenged in
the courts. So keep an eye on these jurisdictions and others that may follow the trend.

10
  Does the legislation allow a conversation regarding salary expectations, provided
there is no discussion of salary history?

 Does the legislation contain exceptions if the employee voluntarily discloses

his/her previous compensation?

 Does the legislation allow for a private right of action, and what are the
damages/penalties for a violation?

Conclusion

As reflected herein, the hiring process can be somewhat of a legal landmine. If you have
any questions or doubt, we recommend you consult with an employment attorney who can help
guide you through the process.

WSACTIVELLP:9444967.2

11