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Examine the Facts Before Claiming Unfair Hiring

March 19, 2000

Q: I applied for a job that my employer, a public agency, posted internally.

There were several rumors going around that a certain person would get the position. Before the job was even posted, an organizational chart was found with that person's name on it.

Needless to say he got the job, even though he was the least qualified applicant. Do I have any recourse when the agency selects a person without regard to other applicants' education and experience?

--J.S., Garden Grove

A: If the applicants who were not selected are members of a minority or other protected class--and it can be proved that their qualifications are superior to those of the applicant who was chosen--you may have a viable claim of discrimination.

You should be sure, however, that your qualifications for the job are superior to those of the person who was chosen. For example, although you may have more job experience overall, the candidate who was chosen may have had more experience that is relevant to this job.

Although you may have more education, is that education really relevant to the job? If, for example, the job requires only a bachelor's degree, the fact that you may have a master's degree does not necessarily make you more qualified, especially if your master's is in an unrelated area.

Moreover, an employer generally is free to choose the person it believes will be the best "fit" for the job from among several applicants who meet the minimum stated requirements for the job.

You also may have a valid grievance if you are a member of a union or employee association, and if the selection process did not follow stated procedures.

Although it may appear to unsuccessful candidates that the selection process was unfair, often there are more considerations involved than meet the eye.

While it is possible that management might be motivated by unlawful discrimination, selecting a candidate from several qualified applicants often involves subjective judgments to determine who will perform best. This is not illegal.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

Salaried Employees May Be Required to Log Time

Q: Because we pay overtime to salaried exempt employees, can we require them to punch a time clock before and after work and at lunch breaks to control incorrect overtime reporting?

--J.T., Diamond Bar

A: Yes. Whether paying exempt employees overtime or not, employers may require them to keep records of their time. You certainly may do so to make sure that employees do not receive more overtime pay than they are entitled to.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Medical Exam Allowed Only After Job Offer

Q: I am 60 years old, receiving Social Security disability and looking for some type of part-time work.

I thought I finally had found a job with a nonprofit organization. I was told I had the job, whom I would be working with, where I would be working and how many hours per week I would be working. I had two interviews, a test, and a full medical exam that I have no doubt I passed.

I never heard from the agency again and they now refuse to tell me why I was not hired. Do I have a right to know?

--J.K., Long Beach

A: There is no general state or federal law requiring an employer to provide an applicant with an explanation of why he or she did not receive a job, but there are exceptions that might apply to your situation.

You said that you were required to take a medical examination. Under state and federal disability discrimination laws, employers must follow a number of rules when requiring a job applicant to submit to a pre-employment physical.

The exam may only be required after the applicant has received an offer of employment.

If an applicant is disqualified as a result of the exam, he or she must be allowed to submit an independent medical opinion for consideration before a final decision is made.

In addition, an employer may raise questions about an applicant's physical condition or medical history only if the inquiry is related directly to whether the candidate would endanger his or her health and safety or the health and safety of others.

If the employer denied you the job as a result of your medical exam, you have a right to submit your own doctor's opinion. Because it does not appear that you were given this opportunity, I suggest that you write to the organization and request an explanation why you were denied the job.

If you receive no response or are told that it was because of your physical exam, you may want to contact the California Department of Fair Employment and Housing or the U.S. Equal Employment Opportunity Commission.

Either agency can assist you in determining whether you have a legitimate disability discrimination claim.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

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