Q & A: Pre- and Post-Offer Compliance Issues


Question Corner

Pre- and Post-Offer Compliance Issues

By Jason R. Mau

Q: We are a federal contractor, and many of our positions require U.S. citizenship/permanent residency. Some of our managers want our employment application to ask whether candidates are eligible to work in the United States. Are there any legal concerns with this? We aren’t planning to ask for citizenship status. We only want to confirm that the candidates can legally work in the United States.

A:  As long as you are required by federal contract to employ eligible workers, you may make such an inquiry as the federal contract will exempt your project from the Immigration and Nationality Act prohibiting discrimination on the basis of national origin or citizenship status.  Nevertheless, your company will still need to wait until an applicant has been offered a job to request the applicable documents to confirm eligibility.  

Q: We would like to start making employment contingent on successfully passing both a drug test and a physical. Is there any legal reason we can’t require a physical?

A: Typically, an employer may require a physical examination post-offer to measure performance of physical tasks. However, the Americans with Disabilities Act (ADA) prohibits physical fitness tests that include examinations that could be considered a medical examination, e.g., measuring heart rate or blood pressure.  Such a test would be considered a prohibited medical examination under the ADA.

Q: A nonexempt employee’s wages were accidentally increased $2 an hour six months ago. We have just discovered this error. The employee never came forward with the information. Can we take back the overpayment through prearranged payroll deductions?

A: Yes, if written authorization is obtained.  Under Idaho law, you are allowed to divert a portion of an employee’s wages when empowered to do so by law or the employee gives written authorization for a lawful purpose.

Q: We have surveillance cameras in our warehouse. An employee has expressed concerns that we are violating his privacy rights. Are we allowed to use the cameras?

A: Idaho law does not explicitly prohibit the use of surveillance cameras.  However, there are legal limits for the recording and distribution of the surveillance based on an employee’s expectation of privacy.  These concerns can be addressed with a written notification to the employees when the cameras are installed, or when the employee is hired after installation. 

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.