Name: Hiring Skills and Restrictions
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Question 1

How to deal with Manager who is stating that if you take 9/80 day off this means you have not enough work to do?

Accepted Answer

You may want to kindly tell your manager that taking a 9/80 day off is part of your compensation and work hours and that while you always want to be a team player and carry your share of the workload, you also want to enjoy a work/life balance, which helps you be a better member of the team.

Question 2

I'm currently travelling in China and I can't seem to get through to some websites for deeper learning. My question may be a bit naive. Regarding the Uniformed Services Employment and Reemployment Rights Act, is a hiring manager allowed to make a hiring or firing decision based at least partly on whether the veteran has a discharge status other than Honorable?

Accepted Answer

Yes, a hiring manager can require an honorable discharge as a minimum criteria for a veteran applicant.

Question 3

How is "good-faith"defined?

Accepted Answer

Thanks for your question about "good-faith."
Good faith is a subjective assessment, based on a credibility determination about a person's actions, e.g., whether those actions are transparent and motivated by legitimate interests and reflect the person's true intent. So for example, a good faith workplace investigation is one where the investigator truly wants to determine what happened and who (if anyone) acted poorly in the workplace in order to solve workplace problems.
An investigation without good faith is one where the actions are pro forma and the intent is to defend against someone's claim rather than solve the problem.

Question 4

When speaking in the workplace, do we have a right of free speech? - Is the answer for this question really No ?

Accepted Answer

Thanks for calling out that question/answer set.
We do have a right of free speech... it's just that the employer has the right to terminate us for exercising our speech rights in the workplace when the speech negatively impacts the employer.

Question 5

If a conference is in a tourist area, but you are flying government employees there for business purposes is there a level of risk due to the location being a vacation destination?

Accepted Answer

Holding a conference in a tourist area is acceptable as long as the conference has an obvious business purpose and the business is not providing free benefits to the government employees, e.g., lodging, entertainment, etc.

Question 6

What evidence are legal and valid when reporting issues? For example, screenshots of monitoring dashboard, screenshots of chat messages, voice recording at workplace?

Accepted Answer

Yes, and the more detailed and objective, the better. 
Any recordings, screenshots, Internet history, etc.

Question 7

Why don't individual contributors have to do this training?

Accepted Answer

Individual contributors are not required by law to take this training (currently) and therefore, the employer makes the call regarding whether training workforce wide is worth the time and money.
However, there's a new law in NY mandating harassment training for all employees and there's a bill pending in CA that if signed into law, would also require training for all employees.

Question 8

What does "Evacuation and Retaliation" mean as used in the protected characteristics map for Texas?

Accepted Answer

Here you go:
https://twc.texas.gov/jobseekers/emergency-evacuation-discrimination
It means that people who've needed to relocate due to natural disasters cannot be discriminated against at their job because of that situation.

Question 9

Who is considered a manager?

Accepted Answer

Typically for purposes of training, a manager or supervisor is defined very broadly as anyone who has the authority “to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employees, or the responsibility to direct them…if the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment”. (From California's Code of Regulations).
This definition depends solely on how an employee carries out their job responsibilities, not on a person's exact title or classification by the employer.

Question 10

I work remotely (from home). Is any of the work situation for violence/ injury applicable to me? Is the employer liable if I get hurt /injured during my working hours and working in front of my computer?

Accepted Answer

Super question - thank you!
If you're a remote worker, your employer is typically not responsible for your home office or working conditions. Common exceptions to this general rule would be where the remote worker needs employer support/help to be ergonomically safe at home to prevent injuries.
Hope that helps.

Question 11

What do you do when 2 of your lower level consultants start dating outside of work.

Accepted Answer

When two people who report to you start dating outside of work then it's appropriate to partner with HR to identify the best way to address that particular situation; it could be a candid conversation with both people or something more substantive depending on the situation.
An HR partner can help you problem solve.

Question 12

If you have an employee or contractor that is serving in the military reserves and requires regular and often times unscheduled departures from the workplace, how does the Uniformed Services Employment and Reemployment rights act inform the actions you can take as a supervisor?

Accepted Answer

Here is a helpful pocket guide from the Department of Labor: https://www.dol.gov/vets/programs/userra/USERRA%20Pocket%20Guide.html
The regulations separate leaves into 1-30 days; 31-180 days and more than 180 days.
If the person is gone for 30 days or less, they are to report back to work on the next calendared day.
Employer defenses to multiple, unscheduled leaves that disrupt business operations would be:
Changed employer circumstances
Undue hardship
Or if the position was brief and not ongoing

Question 13

Individual liability: what if my company is headquartered in California, but I am located in a different state that does not have individual liability - which state's law takes precedent?

Accepted Answer

The state law where you are located is always the law that controls.

Question 14

I've known colleagues of mine who have been leaving for a pregnancy. Through their own influence, they are wrapping up work or having projects reassigned as they approach their departure date. Should a company and supervisor be treating someone that's going to be on leave in a way that they help facilitate this or should the company be considering like the person will be there the entire time of leave?

Accepted Answer

Thanks for your question. It's pretty common to re-assign projects when someone is going out on leave so that the business can continue to function properly.
Based on the limited details you provided, this type of response seems appropriate.

Question 15

Is it legal for a site manager to transfer an associate to another job site without his or her consent?

Accepted Answer

Yes, it is - as long as its for a legitimate business reason and not an unlawful reason such as discrimination or retaliation.

Question 16

If a Manager is considered an agent of an employer, why are managers held individually liable for harassment? Shouldn't the liability fall with the employer?

Accepted Answer

Thanks for your question! Managers are individually liable only in some states -- please refer to the Map of States to see which states impose individual liability on people for their actions.
The legislative philosophy in those states (for imposing individual liability) is that the employer did not contemplate or "bargain for" a manager acting illegally -- and that in order to deter the illegal conduct -- people must experience direct and personal consequences for their actions.
Hope that helps clarify the issue for you.

Question 17

Is one's political affiliation protected from harassment? Sometimes people will say "I am a Democrat/Republican/Independent/etc" and you will instantly see some prejudice and change in behavior solely on that alone.

Accepted Answer

Great question, and no, political affiliation is not protected at the federal level or in most states.
We would describe actions based on someone's political affiliation as "yellow" -- meaning frustrating and demotivating.

Question 18

Why is sexuality not a protected characteristic?

Accepted Answer

It is. Someone's sexuality is protected under sex and/or sexual orientation.

Question 19

I was curious why medical conditions are limited to cancer and other genetic characteristic. Does an auto-immune disease or other non-cancer disease fall into this category?

Accepted Answer

Other conditions would be covered under physical disability.
The medical condition trait was the result of focused lobbying from women cancer survivors -- so it focused on cancer and the cancer gene (BRCA).

Question 20

Protected Characteristics vary from state to state; what protected characteristics is one legally bound to following when interacting (travel, skype, phone, etc) with colleagues that are located outside of their state of employment?

Accepted Answer

In terms of legal parameters, your own state's laws control your actions and liability for those actions.
In terms of workplace culture, a person's actions should be controlled by the organization's values and what the organization deems appropriate.
Hope that's helpful.

Question 21

Can "timely, good-faith investigations" be conducted when all people managers and HR staff are located several thousand miles and three time-zones away? Or even further away if one factors in line management located in India? Can an investigation be conducted via telephone or email? Is reporting a problem by phone or email even a good idea?

Accepted Answer

Timely, good faith investigations are based on the full situation, which would include where people are located and their time zones.
So a judge/jury would allow more time for an investigation when people are in different regions/time zones.
Even so, it would be difficult to establish "good faith" when conducting an investigation via phone and email and without a personal interview.
Part of the investigator's job is making credibility determinations, which is difficult to do when you're not meeting face to face.

Question 22

In the definition of harassment... when my company is national, are the protected characteristics those identified by the regulations in the state of the speaker, or the audience, or both (obviously, when in doubt be kind)? From a legal perspective if someone in Oregon where sexual orientation is a protected characteristic were talking to someone in Florida where it is not, and harassed the Floridian based on their sexual orientation, would the Floridian be protected because of Oregon regulations, or vulnerable because of Florida's lack of regulations?

Accepted Answer

Thanks for your question. You're protected by the laws of your state. So under your proposed business situation, the
Floridian would be vulnerable due to the lack of Florida legal protections.

Question 23

Does personal liability fall under the workplace location or where the individuals reside?

Accepted Answer

Personal liability depends on where the person resides.

Question 24

I currently have approved FMLA for a parent with a serious health condition. I find from time to time that my Employer, Manager, or Supervisor past and present will ask me how my parent is doing or what is going on with their condition after I have taken an FMLA day to care for them. It makes me feel uncomfortable and I feel that I have to answer and if I become vague with answers it will make things harder. Is this right?

Accepted Answer

Thanks so much for your question and I'm sure you're in the same boat as many other people who are caring for aging parents!
From the employer's side -- they have the right to verify the need for FMLA leave, whether taken intermittently or at one time. The employer does not have the right to probe for details of the serious health condition.
Having said that, it's very common for people to be concerned when a co-worker is dealing with an ailing family member and general questions expressing concern for you and/or your family member are to be expected and don't -- in and of themselves - indicate bad intent.
If their questions bother you, you may want to say something along the lines of: "this is a tough situation and I appreciate your concern, but I'd rather not think about it when I'm at work. But if you have a work concern, then please let me know."
That type of response should filter out curious questions from real work related concerns.

Question 25

Medical condition in this section only relates to real or perceived impairment related to cancer. Is it that limited?

Accepted Answer

Thanks for your question. Medical condition is a protected characteristic in California and includes any genetic characteristic or cancer. Here's California's poster on the protected characteristics:
https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH_WorkPlaceDiscriminationHarassmentPoster.pdf
Other types of conditions or disabilities would be covered under physical or mental disability protections.

Question 26

I'm curious as to why pansexuality is not included in the "sexual orientation" protected characteristic on page 4 of 9 in the definition of harassment section - is there no case law on this yet, or is it considered a less common example of a protected characteristic?

Accepted Answer

Thanks for your question. We will review and update our content so it reflects the most current thinking on these issues.
Thank you for bringing it to our attention.

Question 27

Are the personal characteristics protected by the State the company is based out of or where the remote employee lives?

Accepted Answer

Thanks for your question!
The legally protected characteristics stem from where the employee resides and which state laws apply to that employee's situation.
Hope that helps clarify.

Question 28

If my employers headquarters is in one state but I work at the office in another state do I need to be concerned with both states protected characteristics?

Accepted Answer

Thanks for your question (about which state's laws apply) and the answer is: you need to be aware of the laws of both states if you are a manager of an employee who resides in a different state.
If you don't manage anyone -- you just need to know your own state's laws. If you manage people in other states -- then you need to be aware of those legal protections as well since they impact the employer-employee relationship.
Hope that helps.

Question 29

what does the individual liability mean?

Accepted Answer

Individual liability means a person can be sued personally (not just the company) for their workplace conduct. Hope that helps.

Question 30

I'm trying to make sure I understand the gender bathroom question. According to this, a man can go into the woman's restroom and a woman can go into the man's restroom? I'm in Paragould Arkansas, our facility does not have gender neutral bathrooms and I was not aware you could use either bathroom. Am I reading that wrong?

Accepted Answer

The gender and bathroom question would be less relevant to employees in Arkansas as Arkansas does not legally protect gender identity, which refers to someone's belief in their gender regardless of physical gender at birth. Here's the Arkansas Civil Rights statute:
https://law.justia.com/codes/arkansas/2010/title-16/subtitle-7/chapter-123/subchapter-1/16-123-107/
Hope that helps clarify the issue for you. Thanks!

Question 31

How does individual liability apply when the the company is HQ'd in CA but the employees and managers are remote in different states and/or countries [i.e. Canada]? Example: I am in FL but have employees in different states and even a few in Canada.

Accepted Answer

A person's legal responsibility (liability) is governed by the state laws where they reside. 
Your legal responsibility to the Georgia employee is governed by Georgia law.
However, there's legal responsibility and then there's being consistent with your corporate culture. Many California based companies have a higher bar for "being respectful" due to California policies and regulations.
So for example - Georgia law does not protect sexual orientation: http://ga.elaws.us/law/section45-19-22 California does protect sexual orientation: https://www.dfeh.ca.gov/Employment/
So a Florida manager would be wise to be respectful to a Georgia employee based on their sexual orientation, regardless of whether or not that personal characteristic is protected in Georgia.

Question 32

If competing harassment claims are made, are both parties protected?

Accepted Answer

Yes, anyone making a harassment claim is protected from discrimination or retaliation for making that claim.

Question 33

How are conditions other than cancer and genetic disorders protected under the law? Can you provide more information to read about other disability protections?

Accepted Answer

Thanks for your question. Physical and mental disabilities are legally protected characteristics.
Essentially, a person's disability should not be a basis for negative management actions if the person can perform the essential functions of their role.
Here's a link to view the laws related to disability protections in California:
https://govt.westlaw.com/calregs/Browse/Home/California/CaliforniaCodeofRegulations? guid=I25BA306C556C4024B0FAB9F2736754A9&originationContext=documenttoc&transitionType=Default&contextData= (sc.Default)

Question 34

The Individual Liability section directs you to an information map, but there is no information on personal
liability for managers in NY. Does this mean that there is no personal liability?

Accepted Answer

Thanks for your question! The statute does not spell out a claim against individuals for their harassing acts - it just addresses employer liability.
However, case law (interpreting the statute) has upheld harassment claims against co-workers where the co-worker actually participates in the discrimination or harassment. See Malena v. Victoria’s Secret Direct, LLC 886. F.Supp.2d 349, 366 (S.D.N.Y. 2012) (internal citations and quotations omitted).
So while the statute doesn't outline that claim, it's still possible if a plaintiff pushes it in court.

Question 35

What does it mean when it says the for my state that "There is no individual (personal) liability for harassment"?

Accepted Answer

It means that someone cannot sue a manger or co-worker personally. They could name that person in a lawsuit as someone who contributed to the situation -- but not sue them personally.

Question 36

Regarding age discrimination/harassment - Am I understanding correctly that in most states people are only protected from age discrimination beginning at age 40? So, while it would not be acceptable to say something like "you're too old for this job" you CAN say something like "you're too young for this job"?

Accepted Answer

Yes, age protection starts at age 40 federally and in most states (a few start protection at age 18).
And while you could legally say - -"you're too young for this job" -- it's not a good management practice. You always want to anchor your comments to business needs like skills or experience. So the sentence would be something like - -"you don't have enough experience yet for this role.

Question 37

My manager wants to make me work Sundays but my religion doesn't allow for that. I had to say that was religious discrimination for them to agree, was I in the right?

Accepted Answer

Yes, you were right in teeing up the issue for your manager -- however -- there's a better way to do it.
Managers and HR Teams react a certain way when they hear employees label actions as harassment or discrimination. That label implies they've already messed up and people often will get defensive.
If you simply state that the law protects someone's right to a religious accommodation and scheduling is a common example of that type of accommodation - you accomplish the same goal (protecting your rights) without triggering people around you to get defensive.
It's a communication technique that allows for more productive conversations.

Question 38

If someone served in the US Coast Guard recently, are they still considered to have "Military and Veteran Status"?

Accepted Answer

Yes, a member of the U.S. Coast Guard is a member of the military armed forces.

Question 39

How come the Protected Characteristic of Age only applies to those over 40?

Accepted Answer

Thanks for your question. In most states and nationally, age protection starts at 40 because social research indicates age 40 (and older) as the demographic most likely to experience negative repercussions from age bias in the workplace.

Question 40

clicking on Texas under "protected characteristics", what does this sentence mean? "There is no individual (personal) liability for harassment.

Accepted Answer

Thanks for your question! It means that people cannot be sued in Texas for their workplace conduct - only the employer can be sued.

Question 41

Do protected characteristics apply to hiring decisions? For example I see that Hawaii includes credit history/report. If a position requires control over finances is it possible for the employer to base hiring on a credit report?

Accepted Answer

Yes, protected characteristics apply to hiring and any other employment action.
However, if a job requires financial knowledge/experience and a demonstrated good record of being able to handle personal finances -- then running a credit check is job related and a reasonable business requirement.

Question 42

do NY and NJ not protect Religion as a characteristic?

Accepted Answer

NY and NJ both protect religion (or creed): https://dhr.ny.gov/complaint; https://www.nj.gov/oag/dcr/downloads/posters/8x11_employmentposter.pdf
Also, the federal government protects religion too: https://www.eeoc.gov/employees/howtofile.cfm

Question 43

Is there any protection for discrimination based on political orientation (party affiliation, support for alternative models of organization, etc)

Accepted Answer

Most state laws do not protect political affiliation as a protected characteristic.

Question 44

What if I see a potential conflict of interest in the workplace. Without knowing all the details, should I report it.

Accepted Answer

Yes -- you can provide context for your concerns, e.g., you don't know all the facts and could be off-base, but sharing your concerns/observations early is way more helpful than waiting for problems to occur and then saying -- "yep -- I saw that coming.

Question 45

I have direct reports in California but I live in Illinois and my HQ is incorporated in MN. CA and IL have personal liability but MN does not. What law governs if a CA-based employee initiates a complaint?

Accepted Answer

Thanks for your question. If a CA-based employee initiates a complaint against an IL- based employee -- the CA law applies against the employer since the employer is doing business in CA, but the IL law applies to the individual manager as the manager cannot be held accountable to CA law if they don't live there.

Question 46

what is the significance of age 40 and older?

Accepted Answer

That's the age that the federal lawmakers and most state lawmakers have determined is where legal protection is required because it becomes increasingly more difficult to find employment as you get older and it becomes a macro, social problem.

Question 47

Does NY City standards apply to our office in Washington, DC? HQ is based in NYC, but I am based at the organization's office in DC.

Accepted Answer

No -- NYC standards only apply to those people who work in that jurisdiction.
These are the protected personal traits of
D.C.: https://ohr.dc.gov/sites/default/files/dc/sites/ohr/page_content/attachments/ProtectedTraitsDC_Sept2017.pdf
That site will also provide an overview of the harassment standards that apply to the D.C. region.
It's fair to say though that the harassment standards are pretty consistent in most of the U.S. states; conduct based on someone's protected characteristic that is unwelcome and changes the nature of their work environment (not trivial or a one time incident) where the employer knew or should have known and did nothing to correct the situation.

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