Monday, March 18, 2013

Survey says - wait a minute, what did that survey just say?

Last week, I was talking with someone about a questionnaire that the person was required to fill out. That questionnaire asked some very personal questions - some of which may not even be legal to ask.

While I won't talk about the specific issues with this questionnaire - it is, after all, private - I will say that this was not an employment application. In the case of employment applications, there is a good idea about what you can ask a potential employee, and what you can't ask a potential employee.

Or is there?

What you can't ask: Are you a U.S. citizen?

Although this seems like the simplest and most direct way to find out if an interviewee is legally able to work for your company, it's hands-off.

In this case, as well as in many of the other cases outlined in this Compare Business Products post, you have to take care to address the specific issue that must be determined, rather than ask a more generic question.

Rather than inquiring about citizenship, question whether or not the candidate is authorized for work.

What to ask instead: Are you authorized to work in the U.S.?

Another potential landmine is privacy of health information with an employer. To be clear, HIPAA does not apply to this relationship - HIPAA is intended to ensure that medical providers, not employers, keep information private.

The Privacy Rule does not prevent your supervisor, human resources worker or others from asking you for a doctor’s note or other information about your health if your employer needs the information to administer sick leave, workers’ compensation, wellness programs, or health insurance.

Some of these tips, although written from the perspective of mental health in Canada, also apply to physical health issues:

In some cases you may be required to disclose the fact that you have an illness; if, for example:

•Your employee benefit plan requires you to submit claims through your employer rather than directly to the company.

•Your employer has an absenteeism policy that requires you to provide a medical certificate if you miss more than a specified number of days of work.

•You are requesting accommodation. You do not necessarily have to disclose the nature of your illness, but you will have to provide enough information to the employer about your disability so that appropriate accommodation can be provided.

And there's an important question to be considered:

Does your employer have a privacy policy? If you tell your manager or supervisor about your illness, will they keep it confidential?

Another biggie is a person's religious views (or lack thereof). In the United States, the law is clear on this matter:

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment....

The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.

Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

So before you design a questionnaire that asks a person's citizenship, complete medical history, and willingness to participate in a hot dog eating contest during Ramadan, ask yourself - is all of this really necessary for a customer who wants to purchase a television set?

And don't even get me started on Social Security/Social Insurance Numbers...
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