If your company is considering recruiting and hiring new employees, be sure to take a hard look at the draft job announcement youre thinking about publishing on the Internet or in the local newspaper.
Under a new law the Oregon Legislature passed during its most recent session and that the governor is expected to sign soon, it will be unlawful for Oregon employers (including an employers agent, representative or designee) and employment agencies to knowingly or purposefully publish in print or on the Internet an advertisement for a job that:
- Requires current employment as a job qualification
- States that applications submitted by job applicants who are currently unemployed will not be considered
- Or states that only applications submitted by job applicants who are currently employed will be considered.
The purpose of the new law is to protect applicants who have been struggling to find a job from having their unemployed status count against them.
Although the new law does limit some information that employers can put in job announcements, it still allows an employers job announcements to include information about qualifications for the position, including such requirements that the applicants hold valid professional or occupational license, or that he or she possesses a minimum level of education or training.
In addition, the new law does not prevent an employer from considering only its own current employees for the position.
Unlike most other Oregon laws protecting employees from discrimination, the new law does not create a private right of action, meaning that an individual employee could not sue an employer in court and collect damages if it posted an unlawful job announcement.
However, the consequences of ignoring the new law are still steep. The Oregon Bureau of Labor and Industries is authorized to assess a civil penalty of $1,000 against any employer that violates the law.
Its also important to remember that the new Oregon law isnt the only limitation to keep in mind when drafting a job announcement. Under a separate provision of Oregon law, and with limited exceptions, it is illegal for an employer to publish a job announcement that restricts who can apply based on race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older, . . . expunged juvenile record, or to express a preference based on one of those characteristics. Federal law contains a similar requirement.
While most employers know its unacceptable to advertise that a position is for whites only or for women only, not every example is so obvious. For instance, the Equal Employment Opportunity Commission, the federal agency charged with interpreting and enforcing federal employment discrimination laws, advises on its website that a job announcement seeking recent college graduates may be unlawful because it would discourage older applicants from applying for a position.
State and federal disability law present still another potential trap for the unwary drafter of a job announcement. For example, it would be illegal for a job announcement to state that applicants with disabilities need not apply although an employer can advise that the applicant must be able to perform the positions essential functions, which may include a physical-exertion component, especially in industrial or blue-collar jobs.
In addition, the EEOC advises that an employer must make information about a job opening accessible in alternative formats if it receives a request for such from an applicant who has a disability (e.g., a sight-impaired applicants request for a copy in Braille).
The opportunity to hire a new person for your company is always exciting, especially in a state thats suffered from high unemployment, such as Oregon. But dont let your excitement about publicizing an open position keep you from considering the legal restrictions regarding what you can and cant say in the job announcement.
(John B. Dudrey, an attorney with Barran Liebman LLP, represents management in employment litigation and provides advice in employment matters. He can be reached at 503-276-2192 or by emailing firstname.lastname@example.org.)