Labor Commission, Antidiscrimination and Labor, Antidiscrimination

Rule R606-2

Pre-Employment Inquiry Guide

Notice of Proposed Rule

(Repeal)

DAR File No.: 35297
Filed: 09/28/2011 11:22:05 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Labor Commission proposes to repeal the existing Rule R606-2, "Pre-Employment Inquiry Guide," because the information contained therein is a restatement of principles derived from state and federal case law and other sources. Since the rule is intended to be informational rather than directive, the Commission believes the subject matter is more properly disseminated through educational materials rather than by rule.

Summary of the rule or change:

The proposed change repeals Rule R606-2 in its entirety.

State statutory or constitutional authorization for this rule:

• Section 63G-4-102 et seq.
• Section 34A-5-101 et seq.

Anticipated cost or savings to:

the state budget:

The standards of conduct described in Rule R606-2 are established by other sources of law. Consequently, repeal of Rule R606-2's restatement of those standards will have no substantive effect and will not result in cost or savings to the state budget.

local governments:

The standards of conduct described in Rule R606-2 are established by other sources of law. Consequently, repeal of Rule R606-2's restatement of those standards will have no substantive effect and will not result in cost or savings to local government.

small businesses:

The standards of conduct described in Rule R606-2 are established by other sources of law. Consequently, repeal of Rule R606-2's restatement of those standards will have no substantive effect and will not result in cost or savings to small business.

persons other than small businesses, businesses, or local governmental entities:

The standards of conduct described in Rule R606-2 are established by other sources of law. Consequently, repeal of Rule R606-2's restatement of those standards will have no substantive effect and will not result in cost or savings to persons other than small businesses, businesses, or local government entities.

Compliance costs for affected persons:

Repeal of Rule R606-2 will not eliminate or impose any additional requirements on businesses, workers, or other affected persons. Consequently, the rule's repeal will not impose any compliance costs on affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

Because Rule R606-2 merely recapitulates for preemployment inquiries what has been established elsewhere, repeal of the rule will have no fiscal impact on businesses.

Sherrie Hayashi, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Labor Commission
Antidiscrimination and Labor, Antidiscrimination
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Heather Gunnarson at the above address, by phone at 801-530-6921, by FAX at 801-530-7601, or by Internet E-mail at hgunnarson@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/14/2011

This rule may become effective on:

11/21/2011

Authorized by:

Sherrie Hayashi, Commissioner

R606. Labor Commission, Antidiscrimination and Labor, Antidiscrimination.

[ R606-2. Pre-Employment Inquiry Guide.

R606-2-1. Authority.

This rule is established pursuant to Section 34A-5-104.

 

R606-2-2. Guidelines.

Any inquiry is improper which, although not specifically listed below, is designed to elicit information as to Race, Color, Sex, Age, Religion, National Origin, or Disability. The prime consideration for any job is the ability to perform it.

A. NAME

1. Proper Pre-Employment Inquiries:

First, Middle, and Last Name and any other name used for prior employment.

2. Improper Pre-Employment Inquiries:

Inquiry into original name cannot be used for discriminatory purposes. Inquiries concerning specific questions about the name which would indicate applicant's lineage, ancestry, national origin, or descent; or to require prefix to applicant's name, (Mr., Mrs., Miss, Ms.); or to inquire into marital status unless based on legitimate bona fide occupational qualifications or prior employment history are considered improper.

B. ADDRESS

1. Proper Pre-employment Inquiries:

Applicant's place of residence.

2. Improper Pre-employment Inquiries:

Inquiry into foreign addresses which would indicate national origin.

C. BIRTHPLACE

1. Proper Pre-employment Inquiries:

Proof of citizenship may be requested prior to hiring in accordance with the Immigration Reform and Control Act of 1986 (IRCA).

2. Improper Pre-Employment Inquiries:

Inquiry into birthplace of applicant, or birthplace of applicant's parents, spouse, or relatives. Require prior to hiring, birth certificate, naturalization or baptismal record.

D. RACE OR COLOR

1. Proper Pre-Employment Inquiries:

None.

2. Improper Pre-Employment Inquiries:

Any inquiry which would indicate race or color is prohibited.

E. AGE

1. Proper Pre-Employment Inquiries:

Are you under the age of 18? If there is a question as to applicant being of legal working age, proof may be requested in form of work permit.

2. Improper Pre-Employment Inquiries:

Requesting an individual's date of birth prior to employment is prohibited, unless relative to whether the individual is a minor.

F. DISABILITY

1. Proper Pre-Employment Inquiries:

a. an inquiry about ability to perform job-related functions as long as the questions are not phrased in terms of a disability.

b. asking a job applicant to describe or demonstrate, with or without reasonable accommodation, his ability to perform job-related functions.

2. Improper Pre-Employment Inquiries:

a. any inquiry whether an applicant is disabled or about the nature or severity of a disability.

b. any requirement for an applicant to take a medical examination prior to an offer of employment.

G. SEX

1. Proper Pre-Employment Inquiries:

Where a bona fide occupational qualification is reasonably necessary to the normal operation of that business or enterprise.

2. Improper Pre-Employment Inquiries:

Any other inquiry which would indicate sex or related conditions such as pregnancy or plans to have children. Inquiry into sex of applicant.

H. PHOTOGRAPHS

1. Proper Pre-Employment Inquiries:

Photograph may be requested only after hiring and then only for legitimate business purpose.

2. Improper Pre-Employment Inquiries:

Any request for photograph prior to hiring is prohibited.

I. RELIGION-CREED

1. Proper Pre-Employment Inquiries:

None.

2. Improper Pre-Employment Inquiries:

Inquiry into an applicant's religious denomination, religious affiliations, church, parish, pastor, or religious holidays observed prior to hiring is prohibited.

J. RELATIVES

1. Proper Pre-Employment Inquiries:

Inquiry into name and address and relationship of persons to be notified in case of emergency. For a minor it must be a parent or guardian.

2. Improper Pre-Employment Inquiries:

Names and addresses of any relatives other than those listed as proper.

K. ORGANIZATIONS

1. Proper Pre-Employment Inquiries:

Inquiry into organization memberships including professional, scientific and civic groups, but excluding any organization, the name or charter of which indicate the race, religion, color, sex, and national origin of its members.

2. Improper Pre-Employment Inquiries:

Requirement that applicant list all organizations, clubs, societies, and lodges to which he belongs.

Unlawful to inquire into organizations which may indicate race, religion, color, sex, and national origin of their members.

L. NOTICE IN CASE OF EMERGENCY

1. Proper Pre-Employment Inquiries:

Name and address and relationship of "Persons" to be notified in case of accident or emergency.

2. Improper Pre-Employment Inquiries:

Name and address of all others except those listed as proper.

M. REFERENCES

1. Proper Pre-Employment Inquiries:

Persons willing to give references.

2. Improper Pre-Employment Inquiries:

Request of name of applicant's bishop, pastor, or religious leader.

N. MILITARY EXPERIENCE

1. Proper Pre-Employment Inquiries:

Inquiry into applicant's military experience or duties in United States Armed Forces.

2. Improper Pre-Employment Inquiries:

To require copy of military discharge paper or type of discharge, unless such inquiry is based upon a bona fide occupational qualification.

O. EXPERIENCE

1. Proper Pre-Employment Inquiries:

Inquiry into work experience.

2. Improper Pre-Employment Inquires:

Any inquiries into work history which are not work-related.

P. CHARACTER

1. Proper Pre-Employment Inquiries:

Permissible to ask applicant for character references.

2. Improper Pre-Employment Inquiries:

Questions about applicant's sexual preferences or economic status.

Q. NUMBER OF DEPENDENTS

1. Proper Pre-Employment Inquiries:

This information may be requested only after hiring for legitimate purposes.

2. Improper Pre-Employment Inquiries:

Asking an applicant's number of dependents prior to employment is prohibited.

R. COLOR OF HAIR OR EYES

1. Proper Pre-Employment Inquiries:

None. Asking questions regarding hair color and eye color are not job relevant.

S. HEIGHT AND WEIGHT

1. Proper Pre-Employment Inquiries:

None.

2. Improper Pre-Employment Inquiries:

It is unlawful for an employer to set minimum height or weight requirements for hiring unless based on a bona fide occupational qualification.

T. EDUCATION

1. Proper Pre-Employment Inquiries:

Inquiry into what academic, professional, or vocational schools attended.

2. Improper Pre-Employment Inquiries:

It is unlawful to ask specifically the nationality, racial, or religious affiliation of a school attended by the applicant.

U. PRIOR ARREST RECORD

1. Proper Pre-Employment Inquiries:

None. It is not proper to ask about arrest records.

V. CRIMINAL RECORD

1. Proper Pre-Employment Inquiries:

Have you ever been convicted of a felony? It is proper to ask about a felony conviction.

2. Improper Pre-Employment Inquiries:

Inquiry advisable only if job related.

W. ECONOMIC STATUS

1. Proper Pre-Employment Inquiries:

None.

2. Improper Pre-Employment Inquiries:

It is generally prohibited to inquire as to bankruptcy, car ownership, rental or ownership of a house, length of residence at an address, or past garnishment of wages as poor credit ratings have a disparate impact on women and minorities.

 

KEY: discrimination, employment, time

Date of Enactment or Last Substantive Amendment: 1994

Notice of Continuation: October 13, 2006

Authorizing, and Implemented or Interpreted Law: 34A-5-101 et seq.; 63G-4-102 et seq. ]