By Will Dancer
With the recent proposal of the “Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination (BE HEARD) in the Workplace Act,” the conversation regarding individual rights in the workplace has once again reached the legislative level. With the recent exposure of the #MeToo movement, this issue has been given much more spotlight.
Roosevelt University was visited by Lori Deem, an Outten & Golden plaintiff’s employment attorney who held a panel informing students about their rights and expectations when going through the hiring process.
On April 2, in the Auditorium Theatre, Deem, a Loyola Law-School Graduate, led discussions regarding topics such as permissible vs impermissible questions, the differences between non-disclosures and non-competes and the effects of biometrics.
She began by explaining that Illinois is an example of an at-will employment state, meaning an employer can fire their employee for any reason they choose, as long as they do so without violating any laws.
“But what does that last part mean?” Deem asks. “We have built an entire practice on what that last part means because there are exceptions.”
She went on to elaborate that there are guidelines that employers must adhere to in order to let go of their employee. The list of impermissible reasons is long and excludes questions on the basis of race, sex, religion, disability, pregnancy, country of origin, citizenship status, marital status, children, military record, etc. Therefore, during the hiring process employers are not allowed to ask any of those questions on the application or during the interview.
“Regardless of whether you were asked an impermissible question, you may still want to get the job. So, the question is do you call them on it? That’s a judgement call you have to make in the moment, but if your spidey-sense goes up on the back of your neck, you should trust your instincts that that probably wasn’t a question they should have asked you,” Deem said. “Put it down in your notes in case you don’t get the job because that may be something to talk about with a professional.”
She expressed the belief that employers will inevitably assume things about their prospective employee during the face-to-face interview process but they cannot legally probe them past their obvious physical appearance.
Deem used the hypothetical example of an employer saying “oh, I see that you have this lovely mocha skin tone, where are you from?” as an impermissible question. She recommended that the employee abruptly change the subject if ever in a situation like this.
She also touched briefly on the pre-hire “ban the box” initiative, where it is now illegal for an employer to have a question on an application regarding an employee’s arrest and felony records.
However, after moving past the application and interview, employers can begin to probe further, especially if the job demands specific precautions regarding arrest records and citizenship. Post job offer, they can ask medical questions and an employee’s level of physical and mental disability; in case they need special accommodations for their desk or computer or whatnot.
Jobs where the individual is in a position of trust such as aviation, health care, transportation and education can require drug testing at the point of hire or randomly throughout the employee’s time of working there. However, the employer must give informed consent to be signed by the employee stating that the employee will be randomly tested.
“This is a place where discrimination really can creep in. if you are being asked to do a drug test and nobody else is and nobody has for six months, spidey-sense should go up because that’s really out of the blue. That can be discriminatory,” Deem said.
Regarding social media and internet checks, employers cannot ask for the employee’s passwords or account information, the employer cannot physically access the employee’s accounts or set up “dummy accounts” to track and phish the employee.
“I live the advice I give; your private life should be your private life, but the internet is not your private life… However, if they’re demanding your Facebook account and password so they can check you out before you’re hired, Spidey-senses go up,” Deem said.
Employers generally cannot investigate and make a decision based on an employee’s credit score, however, there are certain circumstances when applying to a job that involves unsupervised access and handling of money or assets that exceed $2,500.
“A jewelry store technically fits that category… at Macy’s. Anywhere that carries that kind of merchandise. Best Buy I think still asks for credit checks… if you work at a bank or an investment house,” Deem elaborated.
She also explained that individuals in management positions or in a job that involves confidential trade secrets may have to go through a credit report as well.
“This is the catch-all for white-collar jobs,” Deem stated. “If you’re going to be in contact with our company’s trade secrets and confidential information, we want to be clear here, let’s see your credit score”.
However, due to the Fair Credit Reporting Act, an employee who was not hired because of their credit score must be allowed access to the same documents and information that the employer saw, which may grant the employee a right to an appeal.
During the onboarding process, Deem emphasized the point that the new employee should never just sign stacks of paper or confirm an email request without reading what it is. She expressed the opinion that they should ask questions and keep copies of everything and know the company’s policies regarding things like confidentiality and terms of rehire.
She continued with a discussion about the difference between non-disclosure and non-compete agreements. With the former being a signed agreement between the employer and the employee to not reveal anything that needs to be kept secret to the company. The latter being a signed agreement between the employer and employee that the employee cannot work for the company’s competitors for a certain period of time. That period of time cannot exceed two years in the State of Illinois.
Deem ended her speech discussing biometrics and what employees should be aware of when it comes to this new technology in the job sphere. Biometrics are known as a form of individualized data from a person’s body such as their fingerprint, retinal scan, or facial recognition that is collected into a database.
With the Illinois Supreme Court ruling against Six Flags’ Great America park in Gurnee for their misuse of biometrics and China collecting facial data for 65 percent of their population, Deem informed the audience of the Illinois Biometric Information Privacy Act and that an employee must give consent before biometrics can be collected by a company they work for.
“This is not the next frontier, it is here, it is happening now and BIPA is one of the laws out there that is protecting us and protecting our privacy, but the key is consent. So, again if you’re slid across the desk all that paperwork on your first day, one of the pieces of paper now might be: ‘We are allowed to collect your retinal scan and we are allowed to store it…’ You’re okay with that, right? Sign the document’,” Deem stated.
The collecting may not be disconcerting to some, but the threat of hacking into biometric databases is a concerning consideration.
Therefore, in this day and age when there are so many factors that go into obtaining and maintaining an occupation, it is important to know when you are being mistreated because there’s a chance you can come out better off than if you had gotten the job.
“As you’re sort of thinking about where you want to work and what you want to do with your career, these are some guideposts,” Deem concluded.