Employment Law

An Employment Lawyer’s Tips For Crafting a Job Application (Pun Definitely Intended)

CASACELI432 (A5312550x7A575).jpg

By: Brian Casaceli
Associate at Mirick O’Connell
Labor, Employment and Employee Benefits Group

Job applications can be an area with many traps for the unwary. Recruiting qualified applicants is a necessity for all employers – craft breweries included.  To assist in the hiring process, breweries should prepare job applications that elicit information needed to identify and evaluate qualified applicants.  In crafting a job application, breweries should be aware of state and federal employment laws governing what questions it may and, more importantly, may not, ask.  

What Can, And Should, Be Included In A Job Application 

Equal Employment Opportunity Statement

Every application should inform applicants that the brewery is an equal opportunity employer and will consider all applications for employment without regard to an applicant’s membership in a group or class protected by federal, state, or local law.  

Similarly, to ensure qualified individuals with a disability under state or federal law are afforded an equal employment opportunity to participate in the application process, breweries should  include a statement informing applicants to contact a designated individual at the brewery (i.e., the HR Manager) if they need a reasonable accommodation to complete the application process.   

Work History Questions

1*RU-Pbef8IJI5hWxQ9df3dA.jpg

            Breweries should ask applicants to list prior employers, the positions and dates held, hours worked per week, and the applicant’s reason for leaving.  Notably, when the application requests a candidate’s previous work experience, it should specifically inform the applicant that he/she may list any verified work performed on a volunteer basis. 

To the extent a brewery intends to conduct reference checks with prior employers the applicant identifies, the brewery should have the applicant specifically authorize his/her present and former employers to disclose to the brewery information regarding the applicant’s prior employment, and release all parties from any liability whatsoever resulting from such disclosure.   

 Education Questions

            Breweries may ask about the applicant’s educational background to the extent it is relevant to the requirements of the position for which the applicant is applying.  Questions about the name of the high school/GED, college/university, trade school, level of education obtained, location, area of study, and degrees earned are all appropriate.  Breweries should not, however, ask for graduation dates as such data could be used as a proxy to determine an applicant’s age and could provide fodder for an age discrimination claim from an applicant not chosen for the job. 

            If a brewery intends to conduct a check with an applicant’s educational institution, the applicant should authorize the institution to provide the brewery with pertinent information relative to the applicant, and release all parties from any liability whatsoever resulting from such disclosure.                  

            Questions Not to Ask on a Job Application or During an Interview

Questions About Personal Characteristics Protected by Law 

            The Federal Equal Employment Opportunity Commission (“EEOC”) recommends employers not ask applicants about personal characteristics protected by law, including race, color, religion, sex, pregnancy, national origin or age.  Brewers should also refrain from asking any similar questions during an interview with the applicant, or at any other point during the hiring process. 

            The EEOC further notes that job applications may not seek information concerning, and interviewers may not ask questions about, an applicant’s disability, questions that are likely to reveal whether an applicant has a disability, or questions that seek an applicant’s genetic information. 

Criminal History Questions

In 2010, Massachusetts enacted “ban the box” legislation that prohibits employers from asking applicants about their criminal history on the initial employment application.  Last summer, Massachusetts Attorney General Maura Healey warned seventeen employers in Massachusetts, and issued fines to four national employers with multiple locations in Massachusetts, for asking criminal history-related questions on initial job applications.  Given the Attorney General’s heightened enforcement of the law, craft breweries are well-advised to remove any criminal history related questions from their initial job applications. 

Massachusetts law does, however, permit an employer, in certain circumstances, to ask applicants about their criminal history after the initial job application, such as during an interview.  Before asking such questions, a brewery should seek advice of legal counsel.          

Salary History Questions 

On July 1, 2018, an amended version of the Massachusetts Equal Pay Act (“MEPA”) went into effect.  Except in limited circumstances, MEPA prohibits employers from asking applicants questions about their salary history at any point in the hiring process. Breweries may not, for example, inquire about the amount of money applicants make at their present job on an initial job application or during a subsequent in-person interview.  (Breweries may inquire about an applicant’s salary history in limited situations: (1) to confirm wage or salary history information voluntarily shared by the prospective employee; or (2) after an offer of employment with compensation has been made to the prospective employee.)   

Guidance from the Attorney General’s office advises employers that they may inquire about an applicant’s salary expectations (e.g. what the applicant is looking to make in the position for which they are applying).  To the extent such an inquiry is made, breweries must be careful not to ask the question in a way that is designed to elicit the employee’s salary history.     

Social Security Numbers

            Generally speaking, although employers are not legally precluded from asking applicants to provide their social security number on a job application, brewers should avoid collecting a social security number until after an offer of employment has been made and the information is needed to conduct a background and/or credit check.     

Lie Detector Tests

            Employers in Massachusetts may not require an applicant to undergo a lie detector test as a condition of employment or continued employment.  In fact, under Massachusetts law, all job applications must include the following statement:

It is unlawful in Massachusetts to require or administer a lie detector test as a condition of employment or continued employment.  An employer who violates this law shall be subject to criminal penalties and civil liability. 

Applicant’s Acknowledgment 

A job application should conclude by having the applicant review and acknowledge the following:

-      All of the information provided in the application is true, accurate and complete to the best of the applicant’s knowledge;

-      Omissions or false statements may result in withdrawal of a job offer or termination of employment if the applicant is hired;  

-      If offered employment at the brewery, the acceptance of such employment will not cause the applicant to violate any other agreement to which he/she is bound (i.e. a non-competition or non-disclosure agreement); 

-      To the extent the applicant is hired for employment, he/she will be an at-will employee and will have no contractual employment rights; and 

-      An offer of employment may be conditioned on the results of pre-employment drug screening, criminal records and/or background check.  

To the extent that a brewery seeks a credit check or an investigative consumer report as part of a background check, the brewery must comply with applicable state law and the Federal Fair Credit Reporting Act which, in part, requires that the applicant be provided a separate disclosure and authorization form. Given the law’s technical requirements, breweries are advised to seek legal counsel when such checks are necessary. 

If a brewery intends to conduct pre-employment drug testing, the job application should explicitly identify this fact.  Giving advance notice to applicants that they may be required to undergo a drug test as part of the application process will create a diminished expectation of privacy, making it harder for an applicant to bring an invasion of privacy claim against a brewery.       

 Until next time, cheers!

 

Hold My Beer

An Employment Lawyer’s Tips For Craft Brewers
By: Brian Casaceli, Associate at Mirick O’Connell

CASACELI432 (A5312550x7A575).jpg

A few friends and I were recently enjoying a couple ofcold beers at a local brewery – which shall remain nameless to avoid playing favorites!  We discussed how the craft brew movement has been such a positive force not only in Massachusetts, but across the country.  We marveled over the crowds that breweries draw, the diversity and selection of beers (and ciders), and the seemingly endless list of IPAs we need to try. The consensus was that, if we ever found ourselves in a position to be part of such a venture, we would all jump at the opportunity. 

On my drive home that night, the employment lawyer in me took over. Given the significant commitment it takes to establish and operate a brewery, and how quickly breweries can grow, I thought – what employment related issues would a brewery need to address to protect its interests?  Several issues immediately came to mind.     

Protecting the Brewery’s Confidential Information and Trade Secrets Through a Non-Competition Agreement

If not an owner, one of the most essential employees at a brewery is the head brewer or brewmaster – a complex role likely responsible for managing the brewery’s overall operations including hiring and onboarding employees, checking inventory, managing tanks, scheduling, and forecasting production. Given the number of breweries in the Commonwealth, it is easy to foresee a situation where your head brewer/brewmaster might leave your brewery for a competitor.  Such a departure could expose your brewery’s confidential information and trade secrets to a rival brewery.  Fortunately, you may be able to prevent such a scenario from playing out and protect your confidential information and trade secrets by putting a non-competition agreement into place with the head brewer/brewmaster.

As many of you may know, on October 1st, a new law governing the use of non-competition agreements went into effect in Massachusetts.  The law – which sets parameters for how an employer may lawfully enter into a non-competition agreement with certain employees – defines a non-competition agreement as:

[A]n agreement between an employer and an employee, or otherwise arising out of an existing or anticipated employment relationship, under which the employee or expected employee agrees that he or she will not engage in certain specified activities competitive with his or her employer after the employment relationship has ended. 

It is important to note that the law contains many nuances and, for that reason, does not lend itself to a “one-size-fits-all” approach.[1] In fact, given its intricacies, some breweries might opt to forego non-competition agreements altogether and, instead, choose to use other agreements (discussed below) to protect their interests.  Nonetheless, when carefully drafted, non-competition agreements can significantly protect a brewery’s competitive interests.  

Maintaining the Confidentiality of The Perfect IPA Recipe

Perhaps nothing is more sacred to a brewery than its recipes and formulas and the particulars of its brewing process.  To ensure that such information remains private, a brewery should strongly consider having all of its employees who have direct access to such information sign confidentiality agreements.  

Confidentiality agreements, in a nutshell, prohibit an employee from using or disclosing to any individual outside of the company, whether during the course of his/her employment or at any time thereafter, any information the company designates and maintains as confidential, except as necessary to perform his/her job duties.  Thus, in addition to its brewing recipes, a brewery can use a confidentiality agreement to protect a brewery’s trade secrets, other confidential or proprietary information regarding its existing and/or future products, customer lists and/or customer information, business plans, marketing plans and other financial information.  Aside from a confidentiality agreement, breweries should also generally limit access to such information to only those employees who have a business need access to it.        

Protecting Against a Raid of Your Employees and Customers

A brewery can also take steps to prevent departed employees from trying to take the brewery’s remaining employees, and/or its customers through non-solicitation agreements.  Non-solicitation agreements are more narrow than non-competition agreements as they focus on specific activities.    

Employees

If your head brewer or any other employee decides to take a job with another brewery, it is easy to envision how the departing employee might attempt to recruit or solicit other employees to join him/her at the new brewery. To prevent such a situation from happening, breweries should enter into an agreement with their employees that, for a specific amount of time after an employee leaves his/her employment (regardless of the reason), prohibits the employee from recruiting or soliciting for hire any of the brewery’s employees, agents, representatives or consultants.

Customers

A brewery may have an exclusive arrangement with several local restaurants (i.e., customers) that serve its beer/cider on tap.  Breweries should consider a provision that prevents  a sales professional who leaves to join a competitor from using his/her relationship with those restaurants to solicit or do business with them.   

Last Call

Any of the above scenarios can happen in the craft brew industry.  Incorporating the above provisions into your hiring process (or even adopting after the fact) will help protect your business interests, including that secret IPA recipe everyone is trying to get their hands on.  

These are just a few employment-related issues to consider – there are many others out there!  I look forward to regularly submitting articles to the Mass Brewers Guild Newsletter to discuss additional issues as they may relate to craft brewers.  Please feel free to reach out if you have questions on anything mentioned above, or if you want to discuss any other employment related matters.  And, of course, I am always around to grab a beer too!  

[1] Notably, the law prohibits an employer from using non-competition agreements for those employees who are classified as non-exempt under the Fair Labor Standards Act.  Thus, before entering into a non-competition agreement, you must analyze whether the employee, including your head brewer/brewmaster, is lawfully classified as exempt or non-exempt.  It is recommended that brewers contact counsel to assist them with this analysis. 

ReverseLogo.jpg

Brian Casaceli is an employment attorney in the Labor, Employment and Employee Benefits Group at Mirick, O’Connell, DeMallie & Lougee, LLP.  He can be reached at bcasaceli@mirickoconnell.com or (508) 860-1478.