The EEOC has proposed new regulations to enforce the expanded version of the Americans with Disabilities Act passed last year. They’re going to have a big impact on many HR functions, including hiring.

Long story short: With a broadened definition of “disability,” more job applicants will be covered by the law.

As before, a disability’s defined as a condition that substantially limits a major life activity.

But instead of the old “eating, sleeping and working” that courts were used to, the new regs expand protection with a huge list of activities covering everything from caring for oneself and performing manual tasks to concentrating and communicating.

How HR can prepare

The following steps will help HR any new legal landmines created by the regs:

1. Train hiring managers – With more applicants considered disabled by the law, it’s more likely than ever that an unsuccessful candidate will sue for disability bias. Managers need to stay clear of interview questions that touch on health issues.
2. Review job descriptions – Seemingly innocent wording could be thought by courts to exclude to people with disabilities. A company could get in trouble, for example, if a job description lists a specific lifting requirement for a position that involves lifting only occasionally.

Remind managers: The law doesn’t, and never did, require you to hire anyone who’s unqualified. But with new opportunities for people to sue, it’s important than ever to keep the hiring process focused on the applicant’s ability to do the job.

To read a summary of the new regs, click here.

That’s the lesson sure to be learned by a Tennessee auto parts supplier that’s currently fighting two disability discrimination lawsuits.

In the most recent case, brought by the EEOC, the agency is arguing the company tested for legal prescription drugs such as painkillers. According to the suit, the company fired or refused to hire people with “disabilities” (their prescriptions) and failed to keep information learned from the tests confidential, in violation of the Americans with Disabilities Act (ADA).

A previous suit was filed on behalf of seven employees by one worker who suffered from chronic back pain, depression and bipolar disorder, was fired after testing positive for “certain chemicals” (her prescription drugs).

She’d never been cited for safety violations, and, she’s arguing, the medicine didn’t affect her ability to work.

Courts will normally let companies use prescription medication as a reason not to hire someone only when there’s a reasonable belief it’ll affect the candidate’s work or cause a safety risk.

We’ll see what the judge says this time.

Cite: EEOC v. Dura Automotive Systems, Inc. and Bates v. Dura Automotive Systems, Inc.

The Department of Homeland Security (DHS) announced the so-called ‘no-match’ rules (which told employers what to do if the Social Security number provided by a new hire didn’t match the number in the feds’ database) in 2007. Controversy and legal battles have prevented the rule from ever going into effect.

Now, it’s officially off the books. A regulation was published in the Federal Register on October 7 rescinding the rule.

The DHS announced it will focus on promoting the use of E-Verify as the mechanism for preventing the employment of illegal immigrants.

During a pay dispute, an employee in Gerona, Spain, called his boss a “son of a bitch.” He then called the manager “crazy” as he stormed out of the office.

Think someone in your company could do that without getting fired? This manager didn’t think so either.

But a judge thought differently. The employee sued for wrongful termination (like many European countries, Spain doesn’t have “at-will” employment) and won.

Said the judge: “The social degradation of language has caused the expressions used by the plaintiff to be commonly used in many situations, especially arguments,” the Telegraph reports. Therefore, it wasn’t a serious enough offense to warrant termination.

The court ordered the company reinstate the employee or pay him the equivalent of $9,500.

Here’s what happened:

An employee told his boss he needed FMLA leave to care for his newborn son, who was in the hospital. He had worked for the company for less than a year, but would have been employed for 15 months by the time he’d use the leave.

The boss said he’d look into it. However, before any decision was made about his FMLA request, the company decided to let him go, citing an inadequate skill set.

The employee sued, claiming he was fired because he requested FMLA leave.

The company tried to have the case thrown out — the employee wasn’t eligible for FMLA when he was terminated, so he had no standing to sue.

But the court didn’t buy it. In addition to people who use FMLA, the law covers employees who “attempt” to use it — including people who ask for FMLA leave but are turned down. Those employees can still make a case for retaliation under the law.

That means managers need to be careful that documentation backs up any action taken against employees who’ve asked for FMLA leave — even if those employees weren’t eligible.

Cite: Reynolds v. Inter-Industry Conference on Auto Collision Repair

The biggest concern: Users of social networking sites are primarily Caucasians age 20-40. For example, on LinkedIn, only 4% of users are African-American, and just 2% are Hispanic, according to the latest data from Quantcast.

As with all social networking sites, usage declines in older demographics.

Recruiting on those sites can cause problems, says attorney Pamela Devata in Workforce, because it could have a disparate impact on groups without a large social networking presence.

That may be especially true with LinkedIn, which lets users create online connections with people they know. They can then find other people by seeing their contacts’ contacts, their contacts’ contacts’ contacts, etc.

The problem is, finding candidates that way could leave HR with a very homogeneous group.

What’s the danger?

Not all HR experts have the same concern about social networking. As many of those who’ve commented on the story point out, the same complaints can be made about a lot of traditional recruiting strategies. For example, most newspaper readers are white, so therefore recruiting via classified ads could have a disparate impact.

The same goes for referrals, a time-tested hiring strategy. In 2004, an employer was sued by a group of minority applicants who claimed the company’s referral practices were biased.

Nearly all new hires were referred by current employees. Nearly all of the referred applicants were white. The company tried having the case tossed on the grounds that it was just choosing from the applicant pool made available. But the judge refused, ruling that hiring only through referrals had a disparate impact on some groups of applicants (Cite: EEOC v. Caril Buddig & Co.).

Use a variety of sources

So is recruiting through social networking sites really dangerous? It could be.

But probably not much more than some other recruiting methods. The best solution is to find applicants in a variety of places to get a diverse candidate pool.

What do you think? Is recruiting on Facebook, LinkedIn and other sites likely to lead to legal problems for companies? Is the strategy worth the risk? Let us know in the comments section below.

A Rastafarian applied for a job as a security guard. During his interview, the hiring manager told him he’d have to cut his dreadlocks to comply with the company’s safety policy.

That’s where things got tricky. The applicant claims he said he could not cut his hair because of his religious beliefs. But according to the company, he simply said he would not cut his hair.

Either way, the applicant didn’t get the job, and he sued the company for religious discrimination.

The company asked the judge to throw out the case, arguing it didn’t know the man’s refusal to comply with the policy had anything to do with religion. But without a solid set of interview notes from the hiring manager, the court didn’t buy that side of the story.

The case sent to a jury to decide whether religion was discussed in the interview. You know what that means: a long, costly trial, or an expensive settlement.

Cite: Xodus v. The Wackenhut Corporation

Pharmacist’s assistant Babette Perry claims she was left with depression, anxiety and post-traumatic stress disorder after an unconventional safety exercise orchestrated by her the employer.

And by “unconventional,” we mean “stupid.”

As part of a “safety drill,” the hospital had another employee to go to Perry’s office on Christmas Eve. The six-foot-tall man told her the company’s HR director was being held hostage and claimed he had cut the office’s phone lines. The “gunman” demanded Oxycotin in exchange for the release of the HR manager.

Even after it was revealed the threat was part of an elaborate drill, Perry says she began hyperventilating. She was so unnerved she couldn’t work for a week.

She’s now suing the hospital for the costs of her pyschological treatment, as well as punitive damages.

A real estate company used an independent contractor to interview and hire employees to show apartments. One of the candidates chosen for an interview was a 44-year-old man.

During the interview, the contractor allegedly told him he was “too old” for the job and turned him down. The candidate sued the company for age discrimination.

The company argued it couldn’t be held liable, because the biased decision was made by a contractor, not by anyone within the company.

But the court didn’t buy it. It ruled that the company’s responsibility for what happens during its hiring process, whether interviews are conducted and decisions are made by management and HR, or the process is outsourced to a third party.

Cite: Halpert v. Manhattan Apartments

To clear up some of the confusion, U.S. Citizenship and Immigration Services (USCIS) has published answers to a few of HR’s most common questions about federal contractors and E-Verify:

1. Who’s affected by the rule?

Companies will be required to use E-Verify when they enter into federal contracts with a performance period longer than 120 days and a value of more than $100,000. Also, subcontractors are covered by the rule when the prime contract meets the above requirements and the subcontract is for services or construction with a value over $3,000.

2. Which employees must be verified?

Covered contractors are required to verify all new hires, as well as any existing employees assigned to the government contract. That includes employees who perform “substantial duties” under the contract, as opposed to those performing overhead or support work.

3. When do we have to enroll?

The rule went into effect on September 8. Any applicable federal contract signed after that date must include an “E-Verify clause” that requires contractors to use the system.

Companies not already signed up for E-Verify have to enroll within 30 days after they’re awarded a contract with that clause, and they must begin verifying new hires and current employees working on the contract within 90 days.

However, all companies can sign up for E-Verify whenever they want, so current or prospective federal contractors might as well enroll before they’re required to.

4. What if we already have a government contract?

You won’t be required to sign up for E-Verify until you sign a new contract that contains the E-Verify clause.

For more information from USCIS, click here.