A Candidate Told Us They Have a Disability. What Do We Need to Do?

Question: A candidate told us they have a disability. What do we need to do? Answer from Rachel, SHRM-SCP: We recommend asking if they need an accommodation during the application process, but above all, ensure that having this information doesn’t influence your hiring decision. The Americans with Disabilities Act (ADA) requires employers to provide accommodations to applicants with disabilities if needed to be considered for a job unless the accommodation causes an undue hardship. If the applicant doesn’t need an accommodation, simply continue to focus on the candidate’s skills and abilities relative to the position you’re hiring for. As you’re likely aware, employers are prohibited from asking about disabilities before offering an applicant the job. As a best practice, you should be asking all candidates—not just those who disclose a disability or appear to have a disability—whether they can perform the essential functions of the job with or without a reasonable accommodation. This can be as simple as adding a question to your job application. It’s important to not make assumptions about a candidate’s ability to perform their job based on their disability. If a candidate, during the post-offer stage, requests an accommodation to perform the essential functions of their job, then you would engage in the interactive process with them to determine what accommodations may be effective. This Q&A does not constitute legal advice and does not address state or local law. Rachel has a background as an HR Generalist in a variety of industries. After completing a B.A. in Psychology, she began her HR background in employee relations, staffing and payroll. During her free time, Rachel is an avid kayaker and plans to visit every National Park during her lifetime. From HR Support Center - Legal Disclaimer : This message does not and is not intended to contain legal advice, does not address state or local law, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

Are you finding it difficult to fill job openings because not enough people are applying? You wouldn’t be alone. One avenue organizations are taking to expand their applicant pool is to forgo the college degree requirement and instead adopt a more inclusive, skills-based approach to hiring. Would such an approach benefit your organization? To help you answer that question, we’ll go over reasons you might want to keep or eliminate the degree requirement and outline what a skills-based alternative could look like. The Upside of the Degree Requirement For employers, a college degree is an early indicator that an applicant may have the basic knowledge and skills needed for a position. It’s safe to assume, for example, that someone with a degree in graphic design can probably do an entry-level graphic design job. A college degree is also a sign that an applicant has likely developed certain soft skills like communicating with peers, completing long-term projects, and meeting deadlines. It’s not a guarantee, of course, but it enables employers to make reasonable decisions about which applicants to advance to a phone screen or interview. The college degree requirement can also serve as a useful tool for employers overwhelmed with applicants. It discourages some people from applying, reducing the company’s applicant pool and the workload of overburdened recruiters and hiring managers. And last, but not least, some jobs really do require a degree. We’re not suggesting you throw this requirement out the window If you’re hiring a lawyer, doctor, engineer, or other professional whose licensure is likely hinged on completion of a graduate degree. The Downside of the Degree Requirement If, however, you’re hurting for applicants, the degree requirement might be working against you if it isn’t absolutely necessary. While a college education is one way people acquire the knowledge and skills they use in their job, it’s rarely the only way to gain those proficiencies. In most cases, a degree is at best a proxy for basic qualifications, not something someone materially needs to do a job. And, aside from increasing your applicant pool, there are other good reasons to eliminate it. According to a study by Harvard Business School, requiring a degree when it’s not essential “particularly hurts populations with college graduation rates lower than the national average, such as Blacks and Hispanics, age 25 years and older.” It can also raise barriers to entry for many young adults. Eliminating the degree requirement means that you’ll need some other way to screen applicants for the necessary knowledge and skills and what’s become known as “skills-based hiring” is a promising alternative. What Is Skills-Based Hiring? Skills-based hiring prioritizes asking applicants whether and to what extent they have the skills needed for the job, not where they acquired those skills or how long they’ve been using them. The existence and quality of those skills is the deciding factor in whether to hire a candidate, not years of education or work history. It makes room for people who would be able to excel in the role, but don’t have the education or work history generally expected for someone with their expertise or ability. As an example, if you were hiring someone into an HR coordinator role, you’d skip asking them if they have a degree and how long they’ve been working in HR or general administration roles. Instead, you’d start with whether they have data entry and conflict resolution skills—or whatever skills you’re looking for in particular—and then ask how they acquired those skills and how they’ve put them to use. The Challenge of Skills-Based Hiring Skills-based hiring will likely add time to your hiring process. You won’t be able to rely on degrees or years of experience as your first screening criteria. You may have to redesign your application so that it effectively asks about skills and enables applicants to tell their story. You might end up phone screening or interviewing more candidates to ascertain whether they truly have the skills they say they have. You might also have to spend more time with recruiters to ensure they know and understand which skills you are looking for and how to assess whether applicants have them. But, if you are looking to increase your candidate pool and find the best person for that role, it will be time well spent. The Advantages of Skills-Based Hiring First, skills-based hiring has the potential to align more closely with business needs because, if done right, it makes you think clearly at the outset about what skills are truly essential, what specific skills would most benefit your organization, and what skills would merely be nice to have. It also gets you thinking about the role’s evolution as the organization develops and needs change. All this can lead to better job performance, lower turnover rates, and higher employee satisfaction because employees are positioned in roles that suit their skill sets and growth aspirations. Second, skills-based hiring can widen your talent pool. By prioritizing skills over formal education or specific career achievements, you can discover candidates who you’d likely overlook despite being highly capable and a terrific fit for the role. This is especially relevant in fields where practical abilities are more important than academic qualifications and formal experience. Most employers would likely agree that they’d rather have an HR coordinator with sparkling data entry skills and the ability to put people at ease than one with a college degree and five years of experience but no typing or people skills. Finally, skills-based hiring can increase the diversity of your candidate pool. You’re more likely to evaluate candidates on their merit, reducing biases related to education, socio-economic background, or work history. This not only supports a more equitable hiring process, but also brings a broader range of perspectives and ideas to your team, enhancing creativity and problem-solving. From HR Support Center - Legal Disclaimer : This message does not and is not intended to contain legal advice, does not address state or local law, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

Question: Do we need to pay summer interns? Answer from Wendy, PHR: Generally, yes, though it depends on who benefits most from their work. The U.S. Department of Labor (DOL) has adopted the “primary beneficiary test” to determine whether a worker is an employee (who must be paid in accordance with federal wage and hour law) or can be classified as an unpaid intern (a non-employee who is exempt from federal wage and hour law). If the worker is the primary beneficiary of the arrangement—as opposed to the employer—they can be classified as an unpaid intern. If the employer is the primary beneficiary, the worker must be classified as an employee and must be paid minimum wage and overtime under the Fair Labor Standards Act. To determine who the primary beneficiary is, consider the extent to which: The internship provides training that would be similar to what would be given in an educational environment, including clinical and other hands-on training provided by educational institutions. The internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit. The internship accommodates the intern’s academic commitments by corresponding to the academic calendar. The internship’s duration is limited to the period in which the internship provides the intern with beneficial learning. The intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern. The intern and the employer understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee. The intern and the employer understand that the internship is conducted without entitlement to a paid job at the end of the internship. According to the DOL, the test is flexible, and no single factor will necessarily tip the scales. But as a practical matter, if having summer interns is saving your company money or the interns aren’t receiving some kind of academic credit, you should think very hard about classifying them as non-employees. If you’re not sure whether the worker should be classified as an unpaid intern or paid employee, the safer option would be to classify them as an employee. Misclassification can be costly. And as is always the case, you should check state law for any additional requirements. This Q&A does not constitute legal advice and does not address state or local law. Wendy has over 20 years of experience in HR and talent acquisition. She has been writing and talking about HR for 5 years and was an HR podcast host for 4 years. Wendy has a BA from the University of South Dakota. In her spare time, she makes artisan ice cream and volunteers with her daughter's Girl Scout troops. From HR Support Center - Legal Disclaimer : This message does not and is not intended to contain legal advice, does not address state or local law, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

Question: We’ve generally been tolerant of harmless pranks, but recently, an employee placed a suggestive picture on a coworker’s workstation and another employee saw it and complained. How should we respond? Answer from Kyle, PHR: It sounds like this prank could have crossed the line into harassment, even though the person who was offended wasn’t necessarily the intended target. As an employer, you have an obligation to prevent and deal with harassment complaints promptly and thoroughly. To that end, follow your standard procedure to investigate the incident and take appropriate action. Be sure to document every step of your investigation and resulting actions taken so you can show you fulfilled your obligations. Having a clear record will also help you ensure similar situations are handled consistently in the future. Going forward, you could prohibit pranks of any sort, but if they remain harmless and inoffensive while also inspiring joy in the workplace, a blanket ban might not be necessary. On the other hand, if most employees don’t enjoy the pranks or they’re significantly disruptive to the workplace, it might be time to lay down some new expectations around professionalism. In either case, employees should understand what lines not to cross and that “just having fun” is no excuse for violating company policies. You can learn more about harassment on the platform. This Q&A does not constitute legal advice and does not address state or local law. Kyle is a professional author, editor, and researcher specializing in workplace culture, retention strategies, and employee engagement. He has previously worked with book publishers, educational institutions, magazines, news and opinion websites, nationally-known business leaders, and non-profit organizations. He has a BA in English, an MA in philosophy, and a PHR certification. From HR Support Center - Legal Disclaimer : This message does not and is not intended to contain legal advice, does not address state or local law, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

Question: What are whistleblower protections? Answer from Laura, MA, SHRM-CP: Whistleblowing occurs when an employee reports wrongdoing (dangerous, illegal, or unethical activity or practices by the company or its employees) either directly to the employer or to an outside authority. Many laws, including the Occupational Safety and Health Act, consider whistleblowing a protected activity, meaning you can’t lawfully retaliate against an employee for making such a report. If you were to retaliate, for instance, by disciplining the employee or excluding them from promotional opportunities, the employee could file a complaint. You can reduce the risk of employees “blowing the whistle” to an outside agency or authority by establishing clear internal channels for employees to report issues, addressing these reports promptly and fairly, and having zero tolerance for retaliation. Employees should feel safe bringing concerns to your attention and be able to trust that you’ll respond appropriately. If they fear that they’ll be punished for raising issues or concerns internally, they may opt instead to report the matter externally. This Q&A does not constitute legal advice and does not address state or local law. Laura has 9 years of HR experience, spanning public- and private-sector work in the education, transit, and insurance industries. After completing a B.A. in Asian Studies from Knox College, she received her M.A. in Industrial/Organizational Psychology from University of New Haven along with graduate-level certificates in Human Resources Management and Psychology of Conflict Management. Laura enjoys fencing, baking, and cross-stitching. From HR Support Center - Legal Disclaimer : This message does not and is not intended to contain legal advice, does not address state or local law, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

Question: A remote employee told us they were injured at home during their workday. What are our responsibilities? Answer from Kelley, PHR: When an employee informs you that they were injured while working from home, take the claim seriously and follow your usual procedure for a workplace injury. Here are the steps we recommend: Thank them for letting you know about the injury and ask if they need medical attention. If necessary, help them get it. Their health and safety should be your first priority. Have the employee complete a workers’ compensation claim form, which can be obtained from your carrier. The carrier should be notified as soon as possible. Check for any recordkeeping or reporting requirements that you may be subject to under OSHA. Keep a copy of the employee’s claim form and any other supporting documentation. Talk to the employee about what happened to determine if there is a way you can help prevent this kind of injury in the future. For instance, if they tripped over a computer cord, maybe the cords can be bundled and arranged in a safer location. This Q&A does not constitute legal advice and does not address state or local law. Kelley has experience in human resources focused in Payroll and Benefits Administration and Employee Relations for small businesses. She graduated from Columbia Southern University with a Bachelor of Science in Business and Human Resources. In her free time, Kelley enjoys physical fitness, traveling to new places and spending time outdoors in the beautiful Great Smoky Mountains with family. From HR Support Center - Legal Disclaimer : This message does not and is not intended to contain legal advice, does not address state or local law, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

According to a Glassdoor report , in the year after the launch of ChatGPT, usage of that tool or those like it by professionals in the workplace more than doubled! Are you using an AI tool to help you with your work tasks? Have you considered doing so? If so, read on. There are advantages to be had and risks to note. What Is AI? Artificial intelligence (better known as AI) is an umbrella term for a machine’s ability to make predictions, recommendations, decisions, and perform other tasks that would normally require human intelligence. Generative AI models, for instance, can create text, image, audio, and video in response to user prompts. ChatGPT is a kind of generative AI tool called a large language model. It functions similarly to the text predictor on your text messaging app—the feature that predicts and suggests what your next word will be—but at a much greater scale and with much more sophistication. It’s important to note that AI is not actually intelligent. It isn’t cognitive or aware. If you asked ChatGPT to give you a compliment, the AI model would say something nice about you, but it wouldn’t mean it. It isn’t capable of feelings, perceptions, or opinions. Given this limitation, AI should not be used as a substitute for human judgment. The Legal Landscape All the laws that govern employment still apply when you use AI to help make decisions or take action. Hiring and promotional decisions based on AI must still be free of discrimination. AI used in conjunction with providing and administering employee benefits must comply with the Employee Retirement Income and Security Act (ERISA) for covered employers. Using AI for data analysis must still comply with the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act, and other laws. AI does not absolve you of your compliance obligations. As more and more AI solutions enter the market and AI becomes further integrated into the workplace, we can expect legislative and regulatory activity. Illinois and Maryland (as well as New York City) already regulate the use of AI in hiring. Best Practices If you decide to leverage AI for HR and compliance purposes, we recommend the following practices: Be diligent when considering and testing AI tools—no AI tool will be perfect, but some may be more reliable than others. Consult with an attorney when vetting AI vendors and reviewing contracts. Maintain the highest level of privacy practices and standards with all information exchanged with an AI tool. Implement and enforce an AI policy or set of guidelines so employees understand how they should and shouldn’t use AI at work. Rely on human expertise to evaluate what AI creates for you. As when using any knowledge-supporting tool (e.g., a search engine), assume it can and will make mistakes. Set aside time to fact check information and materials created by an AI tool and monitor AI use for discriminatory outcomes and other unlawful practices. Make sure any AI product your organization uses aligns with and contributes to your business needs. Keep your actual pain points in mind when thinking about ways to leverage AI tools. Survey employees about aspects of their work they dislike the most and areas of their work they think may benefit from an AI solution. Develop an AI strategy that explains what you’re using AI to accomplish and how you’ll measure success. Periodically evaluate your uses of AI against those goals and metrics. For example, if a goal for using AI is to save time, does using it in fact save time? Be transparent with employees regarding your point of view and intentions related to AI. Not everyone is excited about AI and what it means for their jobs. People have very strong feelings about it, positive and negative. As you develop and implement AI practices, monitor morale, solicit employee feedback, and show your appreciation for it. You’ll likely get more buy-in from employees if they have a say in how AI changes their work. Encourage employees to share how they’re using AI and what’s working and not working. Ensure that everyone feels safe raising concerns, asking for help, or admitting that AI isn’t working as the company may have hoped. Plan for continued education and constant monitoring. AI technology is advancing rapidly. Employees will need regular training as models develop and new laws pass. Continuously monitor federal and state law. Practices to Avoid Some practices may spell trouble for your organization. We recommend avoiding the following: Assuming an AI model or its output complies with federal and state laws. When asked to draft a termination letter, for example, an AI tool may produce a letter that cites reasons for the termination that it pulls out of thin air—and those reasons may even be unlawful. Don’t hand over AI generated resources or publish AI produced copy without thoroughly vetting it. Assuming AI’s sources are reliable or real. Just because AI tells you a law, regulation, or court case exists or says a certain thing doesn’t mean it does. Allowing yourself to be persuaded by AI’s confident tone. AI can sound authoritative when what it’s telling you is wrong or completely made up. Relying on AI to make employment-related decisions. AI does not provide you with a “get out of liability free” card. Using AI technology to analyze employee data containing protected health or personally identifiable information. Creating legal or legally required documents with generative AI. Uploading anything into an AI model that you wouldn’t want shared publicly. Replacing human expertise with AI content. From HR Support Center - Legal Disclaimer : This message does not and is not intended to contain legal advice, does not address state or local law, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

Question: A remote employee’s roommate has been disrupting their work to the point that their performance is suffering. How should we handle this? Answer from Kim, SPHR, AAM, CPIW: This situation should be handled the same way you’d manage most work disruptions affecting an employee’s performance. Start by having a conversation with the employee about the disruption and explaining your concerns and performance expectations. Remind them that it’s their responsibility to maintain a working environment where they can be successful. Feel free to brainstorm solutions with them—like a different room for their workstation or creating a house rule that calls for quiet during work hours—but it’s ultimately on the employee to make whatever changes are necessary. If things don’t improve, follow your standard process for managing performance. You can learn more about performance management on the platform. This Q&A does not constitute legal advice and does not address state or local law. Kim has held many Senior level HR positions including VP of HR and Administration for a California-based Workers’ Compensation TPA, Director of HR for a benefit and risk management company, and board positions with a professional insurance association. Kim spends her free time tracking down her grown sons. From HR Support Center - Legal Disclaimer : This message does not and is not intended to contain legal advice, does not address state or local law, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

Question: An employee says their manager told them to lose their accent if they ever want to be promoted. Could this be considered discrimination? Answer from Kim, SPHR, SHRM-SCP: Yes. Discrimination based on national origin is prohibited under Title VII of the Civil Rights Act and includes treating applicants or employees unfavorably because they are from a particular country or region of the world, speak with an accent, or appear to be of a certain ethnic background. Even if the manager didn’t follow through on the lack of promotion, ongoing comments from the manager about the employee’s accent could also be considered harassment. We recommend that you take this situation seriously and investigate it immediately. While there are some limited circumstances where an employee’s accent might be legitimately and legally career-limiting, these are few and far between. Usually customers, coworkers, and managers just need to exercise patience and seek clarification. For more information about national origin discrimination, see the harassment page on the platform. This Q&A does not constitute legal advice and does not address state or local law. Kim is a results-driven HR Professional with experience from diverse industries, including but not limited to, transportation, environmental services, staffing, pharmaceutical, market research, banking, retail, software development and education non-profit. In her spare time, Kim enjoys the beautiful view from her home and being with her husband and their German shepherd, Fin. From HR Support Center - Legal Disclaimer: This message does not and is not intended to contain legal advice, does not address state or local law, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.