News + Insights

Here are your top-of-mind HR and compliance questions this month.

Question: An employee came to us with a harassment complaint but said they didn’t want us to do anything about it. Do we have to do an investigation?

Yes, you should still investigate the complaint. Not investigating could expose you to legal risk if more employees come forward with complaints, if the employee later decides to take their complaint to a state or federal agency, or if the harasser continues to harass. Aside from liability, creating a culture that feels safe and inclusive, and discourages harassment, requires acting when these issues arise.

Let the employee who made the complaint know that you, as the employer, need to ensure a safe work environment for all employees that is free from harassment and that you must investigate situations that are brought to your attention. You can assure the employee that you will keep their name out of the investigation as much as possible and that any retaliation for bringing the situation to light won’t be tolerated. If you think your employees will be deterred from submitting valid complaints due to potential repercussions, you might want to consider providing a way for them to report issues anonymously.

Question: A candidate told us they have a disability. What do we need to do?

We recommend asking if they need an accommodation during the application process, but above all, ensure that having this information doesn’t influence your hiring decision. The Americans with Disabilities Act (ADA) requires employers to provide accommodations to applicants with disabilities if needed to be considered for a job unless the accommodation causes an undue hardship. If the applicant doesn’t need an accommodation, simply continue to focus on the candidate’s skills and abilities relative to the position you’re hiring for.

As you’re likely aware, employers are prohibited from asking about disabilities before offering an applicant the job. As a best practice, you should be asking all candidates—not just those who disclose a disability or appear to have a disability—whether they can perform the essential functions of the job with or without a reasonable accommodation. This can be as simple as adding a question to your job application.

It’s important to not make assumptions about a candidate’s ability to perform their job based on their disability. If a candidate during the post-offer stage requests an accommodation to perform the essential functions of their job, then you would engage in the interactive process with them to determine what accommodations may be effective.

Question: We have a repeat applicant whom we offered a job to in the past. This candidate failed a drug screen back then, so we rescinded the offer. Can we reject them now based on their past drug screen result?

No, chances are that rejecting an applicant based on a previous drug screen will violate the Americans with Disabilities Act (ADA). The ADA prohibits employment discrimination on the basis of a disability, which includes being in recovery from substance use disorders. The ADA applies to employers with 15 or more employees, although state laws also prohibit disability discrimination in employment, and many of those laws apply at a lower employee count.

Even if you aren’t subject to the ADA or a state disability discrimination law, we don’t recommend excluding someone from your selection process based on their past failure of a drug screen or other pre-employment screening. Many things could have changed since the last time this candidate was in your selection process, including your own drug screening process, the candidate’s personal habits, or even which drugs are legal under the law in your state. By excluding them from consideration, you could be missing out on a great candidate.

Question: We recently had an open position that two employees were interested in. We’ve made our selection and our chosen employee accepted the role. How do we tell the other employee they were not selected?

We recommend having a face-to-face conversation with the employee who wasn’t selected to let them know that someone else was selected for the role. If you elaborate on your decision not to select this employee for the position, keep the feedback honest and factual. For example, you could let them know that you went with the candidate whose skills more closely match what you were looking for, specifying what those skills are so that the candidate knows what to work on in the future. Factual, job-related feedback like this helps set up the candidate for future success and encourages them to accept, rather than dispute, the decision. Overall, it creates a better experience for everyone.

Assuming you want to keep this employee, you may want to prepare to have a short conversation about their career trajectory, what they could apply for in the future, or how they can grow their skills. They will be understandably frustrated. The feedback will help to foster a more positive and productive conversation about their next career step with the organization.