Keep in Mind the Legal Ramifications When Checking Applicants’ References

Q. What can a prospective employer legally ask a previous employer when checking references? And what information can the previous employer legally volunteer?

--J.S., Costa Mesa

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A. Employers should not ask questions that might be considered discriminatory in nature or seek private background information prohibited by law.

The federal Equal Employment Opportunity Commission issues guidelines listing proper and improper questions for employers to ask a prospective employee.

It would be inappropriate to ask for an applicant’s date of birth, citizenship status, club memberships or medical condition, for example. But it would be acceptable to ask an applicant to furnish proof that he or she meets legal age requirements, to submit verification of the legal right to work in the United States or to reveal membership in union, professional or trade organizations (unless this indicates race, religion, ancestry, sex or age). It also would be appropriate to ask whether the applicant is able to perform the essential elements of the job.

Although there is not as much liability if the employer offers the candidate a job, the employer could be held liable later if the employee is demoted, passed over for a promotion or terminated.

Employers should not assume that a prospective employer won’t provide the candidate with details of a reference check. They often do.

Theoretically, the former employer is protected if it tells the truth. There can be disagreements over what constitutes a truthful statement, however. As a result, the safest strategy may be for a previous employer to confirm only a former employee’s job title and dates of employment.

The Legislature thought misrepresentations to prospective employers so reprehensible that it added criminal penalties and allowed victims to recover triple damages.

A former employer also can be held liable for positive references that prove to be misleading.

Sometimes it’s tough to get it right no matter what you do.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Giving Notice of Pay Cut Has Legal, Other Benefits

Q. Because of a very poor first half this year, our company is thinking about asking all exempt staff to take a pay cut back to the salaries they earned in December 2000.

Does the company have to give the staff any notice or could it just announce it on the day of the first paycheck with the cut in effect?

--D.N., Redondo Beach

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A. For legal and practical reasons, the company would be well-advised to tell employees in advance that their pay will revert back to the salaries they were earning in December 2000.

From a legal standpoint, if an employer does not announce a reduction in pay until after an employee already has rendered services, the employer is subjecting itself to a claim that it is requiring the employee to forfeit part of the pay he or she already has earned.

Such a claim could be pursued by the employee before the State Division of Labor Standards Enforcement, also known as the state labor commissioner, or in court.

From a practical standpoint, telling employees in advance about a pay reduction might help maintain positive employee relations during tough economic times.

For that reason, some employers share with their employees information that explains the reasons for the reduction in pay, and they try to take other belt-tightening steps so that employees do not feel they are shouldering the entire burden.

--Stacy D. Shartin

Employment law attorney

Seyfarth Shaw

Raise Can Be Withdrawn If Promotion Is Forfeited

Q. I recently got a promotion, accompanied by a pay raise. About a month into my new position, I stepped down because of the hours and extra stress.

Can the company take away my raise?

--E.V., Rosemead

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A. Yes. A raise that accompanies greater responsibility or a higher position certainly can be revoked if an employee chooses no longer to hold such a position.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or e-mail it to [email protected]. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent Shop Talk columns are available at http://ukobiw.net./shoptalk.