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Job seekers are not the only ones who may say something inappropriate or botch a question during a job interview. A recent survey by CareerBuilder found that approximately 20% of hiring managers reported that they have asked an interview question only to find out later that asking the question possibly violated the law.

It is important for both interviewer and interviewee to understand what employers  have (and don’t have) a legal right to ask in a job interview.  Even though their intention may be harmless, hiring managers could be putting themselves at risk for legal action by asking certain questions, that some could argue are discriminatory.

A number of hiring managers responding to the poll said they didn’t know if it was legal to ask job applicants about arrest records. Attorneys familiar with the issue agreed that asking about applicants’ criminal records can be tricky for hiring managers.

The Equal Employment Opportunity Commission (EEOC) issued guidance in 2012 designed to help employers understand what they can and can’t ask regarding criminal records.

The EEOC guidance states that an “arrest does not establish that criminal conduct has occurred, and a job exclusion based on an arrest, in itself, is not job-related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”

Asking job applicants about their criminal records has become something of a hot employment topic as a growing number of states and municipalities have enacted “ban-the-box” laws that prohibit employers from asking on job applications if job seekers have been convicted of a crime.

Ban-the-box laws generally allow employers to conduct background screenings and ask about convictions later in the employment process—such as during job interviews. However, the constantly changing legal landscape on what employers can and can’t ask on applications and during interviews can confuse and frustrate many hiring managers.

Generally, the best policy is to avoid questions about applicants’ age, marital status, political beliefs, disabilities, ethnicity, religion and family. Some questions that can be legal and seem relevant to the job can be problematic by the way the question is posed. For example, the question “Are you a U.S. citizen?” might seem reasonable if a hiring manager is trying to determine if an applicant is eligible to work in the U.S. However, the better and more legally prudent question is: “Are you eligible to work in the United States?” Asking about a person’s citizenship status could reveal information about ethnic and national origin that could expose employers to complaints of bias.

The Department of Labor has just published a series of FAQs regarding premium reimbursement arrangements.  Specifically, the FAQs address the following arrangements:


Situation #1: An arrangement in which an employer offers an employee cash to reimburse the purchase of an individual market policy.


When an employer provides cash reimbursement to the employee to purchase an individual medical  policy, the DOL takes the position that the employer’s payment arrangement is part of a plan, fund, or other arrangement established or maintained for the purpose of providing medical care to employees, regardless of whether the employer treats the money as pre or post tax to the employee. Therefore, the arrangement is considered a group health plan that is subject to the market reform provisions of the Affordable Care Act applicable to group health plans and because it does not comply (and cannot comply) with such provisions, it may be subject to penalties.


Situation #2: An arrangement in which an employer offers employees with high cost claims  a choice between enrollment in its group health plan or cash.


The DOL takes the position that offering a choice between enrolling in the group health plan or cash only to employees with a high claims risk would be discriminatory based on one or more health factors. The DOL states that such arrangements will violate such nondiscrimination provisions regardless of whether (1) the cash payment is treated by the employer as pre-tax or post-tax to the employee, (2) the employer is involved in the selection or purchase of any individual medical policy, or (3) the employee obtains any individual health insurance. The DOL also notes that such an arrangement, depending on facts and circumstances, could result in discrimination under an employer’s cafeteria plan.


Situation #3: An arrangement where an employer cancels its group policy, sets up a reimbursement plan (like an HRA) that works with health insurance brokers or agents to help employees select individual insurance policies, and allows eligible employees to access the premium tax credits for Marketplace coverage.


The DOL takes the position that such an arrangement is a considered a group health plan and, therefore, employees participating in such arrangement are ineligible for premium tax credits (or cost-sharing reductions) for Marketplace coverage. The DOL also takes the position that such arrangements are subject to the market reform provisions of the ACA and cannot be integrated with individual market policies to satisfy the market reforms.  Thus, such arrangements can trigger penalties.


Key Takeaway


There has been quite a bit of banter regarding whether any of the foregoing arrangements could be an effective way for employers to avoid complying with the market reforms and other provisions of the Affordable Care Act applicable to group health plans.  These FAQs are a strong indication that the DOL will be forceful in its interpretation and enforcement of these provisions.

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