During our recent HR Myths & Misconceptions webcast, we received a number of questions from attendees about interviews, application forms, overtime, independent contractors, and probationary periods. In this Tip, we answer your questions.

Applications & Interviews:

Background: Various federal, state, and local laws prohibit or restrict employers from asking applicants certain questions during the hiring process. For example:

• The Americans with Disabilities Act (ADA) and similar state laws generally prohibit employers from asking applicants questions that are likely to reveal the existence of a disability.
• Several jurisdictions prohibit or restrict employers from asking applicants about their pay history (under the premise that pay history may reflect discriminatory pay practices of another employer).
• Several jurisdictions expressly prohibit questions about criminal histories until after the employer makes a conditional job offer.

Employers should also avoid questions that may reveal individuals are members of a protected group under federal, state, or local law. This includes questions that would directly or indirectly reveal the age, race, color, sex, national origin, religion, veteran status, genetic information, or family status of an applicant.

Q: What if an applicant brings up an off-limit topic unprompted? Do we discuss or try to move on?

A: Generally, if an applicant voluntarily offers information about their protected status, avoid discussing it and redirect the interview back to job-related information that can help assess whether the candidate is qualified for the job. Avoid considering any protected information when making a hiring decision.

Q: My state prohibits asking an applicant for their salary history. Can I ask them how much they make in their "current" job?

A: No. These laws generally cover salary information with any other employer, regardless of whether it is from a current or previous job.

Q: If my city prohibits me from asking about an applicant's salary history, can we ask about their "expected" or "desired" salary?

A: Typically, these laws allow you to ask about a candidate's expected salary. Also, you can generally provide the candidate with the starting salary (or salary range) for the position and ask whether it would be acceptable if the candidate were offered the position. To err on the side of caution, clearly inform candidates that they shouldn't reveal what they earned in their current or previous job when answering these questions.

Q: Should we ask for a candidate's date of birth on the application?

A: Employers should avoid asking for an applicant's age on job applications and during interviews. If there are minimum age requirements, the employer may ask whether the individual meets that requirement without asking for a specific age. For example, for a job from which minors are excluded, the employer may ask "Are you at least 18 years old?"

Q: Many of the clients our employees work with request non-smokers. Is it permissible to ask whether a candidate is a smoker?

A: Several states have laws that expressly protect smokers from discrimination. A few other states prohibit employers from discriminating against individuals for any lawful off-duty conduct, which includes smoking tobacco. In states that protect smokers, most employers should avoid questions about whether a candidate is a smoker. However, some of these laws have exceptions for certain jobs and circumstances. Consult your legal counsel to determine if smokers are protected under state law and whether an exception applies and is justified in your situation. Keep in mind the potential discriminatory impact such a policy could have if it disproportionately prevents protected groups from applying or being considered for open positions.

Overtime:

Background: The Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees 1.5 times their regular rate of pay whenever they work more than 40 hours in a workweek. Some states require overtime pay in additional circumstances and at different rates.

Q: For purposes of determining whether overtime is due, what constitutes one standard workweek?

A: Under the FLSA, a workweek is a fixed and regularly recurring period of 168 hours, or seven consecutive 24-hour periods. It can start on any day and at any time, but employers may not change the start of the workweek to avoid overtime obligations. Employers must keep a record indicating the time of day and day of week on which the employee's workweek begins.

Q: If a salaried non-exempt employee is paid monthly, should I calculate the weekly equivalent for determining overtime?

A: Employers can pay non-exempt employees on a salary basis as long as they're paid at least the minimum wage for all hours worked and overtime when they work over 40 hours in a workweek. The defined workweek (see above), not the pay period, is used to determine whether overtime is due. To calculate the employee's weekly salary, multiply their monthly salary by 12 months, then divide by 52. For example, if the employee is paid $2,600 each month, the employee's weekly salary would be $600 (($2,600 x 12 months) divided by 52 weeks). Whenever the employee works overtime in a workweek, you would use the $600 weekly salary (and any other relevant compensation) to calculate overtime due.

Note: The FLSA doesn't address how frequently employees must be paid, but most states do. Check your state law to ensure compliance.

Q: We have a 35-hour schedule for our non-exempt employees. After 40 hours, we pay overtime. Should we pay overtime based on 35 hours or 40 hours?

A: Unless you have promised otherwise, there is no requirement for you to pay employees overtime if they work 40 hours or less in a workweek under the FLSA. You would owe them overtime pay only if they work more than 40 hours in a workweek. Keep in mind, however, that a few states require overtime pay in additional circumstances, such as after working a certain number of hours in a day.

Conclusion:

Ensure that your application forms, interview questions, and overtime practices comply with federal, state, and local laws. Check back next week for more answers to your questions on overtime as well as independent contractors and probationary periods.