ASK THE LAWYER BY: DANIEL A. GWINN, ESQ
ASKING ABOUT PRIOR WORKER’S COMP FILINGS A NO-NO IN HIRING PROCESS
QUESTION: A few months ago, during a job interview, I was asked if I had ever filed a worker’s comp claim. I was afraid that I would be off the short list if I answered honestly (I received worker’s comp after breaking an arm at work a couple of years ago), so I said that I had never filed a worker’s comp claim. I didn’t get the job, anyway, but I wondered – are employers allowed to ask that question?
ANSWER: Employers who ask this question are opening themselves up to charges of unlawful discrimination – even though an on-the-job injury does not (necessarily) mean a worker is disabled. Under the Americans with Disabilities Act it is illegal to discriminate against a qualified individual on the basis of disability – or perceived disability — in regard to job application procedures,” which includes hiring, 42 USCA 121112. Rejected job applicants can claim they were not hired because an employer’s knowledge of prior worker’s comp claims resulted in the job seekers being perceived as disabled, and that they were not hired because of the perceived disability.
Recent EEOC guidance, however, says that an employer may ask questions about an applicant’s prior workers’ comp claims – but only after it has made a conditional offer of employment – as long as it asks “the same questions of all entering employees in the same job category.”
Admittedly, it is not easy for an unsuccessful job applicant to win a lawsuit brought on these grounds, but it’s no walk through the park for an employer to defend against a lawsuit, either.
Employers may have valid reasons for wanting to know about worker’s comp claims — other than discriminating against disabled workers or against workers who are savvy enough to assert their rights to workers’ comp. For example, a prospective employer might be concerned that a job applicant might not be able to perform the physical demands of a job, or that a worker might need an accommodation to avoid the possibility of re-injury. Employers who require such information can get it more easily at the interview stage by simply asking all candidates whether they are able to meet the physical demands of the job, like lifting 30 pounds, or standing for four hours without a break. Employers can also require all applicants for in a specific job category to undergo a medical examination.
The prospective employer in your case was wrong to ask you about your workers’ comp history – but you were wrong to lie about it. Employees who lie in the hiring process can be dismissed, even if the fib has no bearing on their ability to do the work.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law