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Question Corner (September 2019)
September 27, 2019
Parsons Behle & Latimer Legal Briefings


Q.  Based on the “ban the box” law that many states are adopting, we removed the criminal history question from our application. We are hiring for a position working with troubled youth, and we received one application from an individual who is known by the manager to have a criminal history. Should we interview him as we would anyone else, even knowing his criminal history will prevent him from obtaining the position? Or can we reject his application based on the position’s sensitive nature?

A.  Idaho has yet to adopt a ban the box law, so there is not a specific legal prohibition to rejecting the application. However, you must be wary of the potential for disparate impact discrimination that these laws look to diminish.  As an employer, you are still allowed to appropriately consider the sensitive nature of the job, but I recommend that if the applicant is otherwise qualified for the job, you also consider the relevance and seriousness of the applicant’s specific offense to the position and the amount of time that has passed since the conviction. These are specific guidelines given by the Equal Employment Opportunity Commission (“EEOC”) and are like provisions in most ban the box laws in other states. 

Q.  Our company works in balloting and election technology. Are we able to limit employee political statements via social media?

A.  Private employers are not prohibited from limiting the political expression of an employee for business-related reasons. So, if an employee’s political expression interferes or infringes upon clear business objectives, you may act consistent with your written policies and practices.  The action must be based solely upon the company’s policies and practices and not on an inconsistent or discriminatory basis such as retaliation focused primarily on the content of the employee’s statements.

Q.  We have an employee who reported his drug addiction and drug use while at work, and we are helping him secure treatment. What conditions can we place on his return to work? He is still actively seeking treatment. Can we make treatment mandatory and require random drug tests for the next two years?

A.  Illegal use of drugs is not a protected activity under the law, and you have no legal obligation to provide him treatment. You may make treatment mandatory in lieu of discipline for drug use while at work and impose reasonable requirements for random drug tests on his return to work to ensure he is no longer engaging in the illegal use of drugs or that the drug use is not a current, ongoing problem.  However, if the employee has a successful rehabilitation, after a few months, the ongoing two-year requirement for drug tests may be viewed as a violation of certain protections under the ADA for qualified recovered drug addicts, especially if it is inconsistent with your current drug testing policy.  Under the circumstances, a specific written document outlining expectations for the employee, and the consequences for failure to meet the expectations upon return to work, may be the better approach to avoid the potential for an ADA violation.

Q.  Is it permissible to offer employees in different classes different amounts of paid time off (PTO)? Is it permissible to offer different employees in the same class the choice between PTO and another option, such as a gift card?

A. Neither federal nor Idaho law requires paid time off, but once it is provided by an employer, it must be administered in a non-discriminatory fashion. Different amounts of PTO can be provided to different classes of employees, but it must be based solely on the differences within the company, like duration or level of employment and cannot be based on employees’ inclusion in a protected class under the various laws prohibiting discrimination, like age or national origin.  As to offering different employees in the same employment class a choice between PTO and a gift card, that could be viewed as a decision based on a discriminatory basis.  Regarding such an in-lieu-of-payment policy itself, I would recommend against adopting it without conditions, as it could be viewed as an agreement to provide compensation for all earned, accrued vacation time, and may limit the company’s ability to set conditions that employees, including terminated employees, must meet in order to receive compensation for unused PTO at the time of separation. 

Jason R. Mau is an attorney in the Boise office of Parsons Behle & Latimer.  He can be reached at 208-562-4898 or jmau@parsonsbehle.com

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