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What are the requirements relating to advertising open positions?
Though no law specifically governs the advertising of open positions in Arizona, employers advertising such positions should be cautious not to use language that could be interpreted as discriminating against any protected class identified in the Arizona Civil Rights Act, or local or federal laws. Employers should also remain aware of federal and state laws that could apply, including laws applying to applicants residing in Arizona.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
Arizona does not have a law prohibiting an employer from asking an applicant about prior arrests or convictions. Legislation has been introduced in the past few years on this and related topics, but has not yet been passed. However, the Arizona Attorney General’s Office has stated in a guide on permissible inquiries in a background check that, consistent with the EEOC’s guidance on the subject, such an inquiry must include a statement that “conviction will not be an absolute bar to employment” (See www.azag.gov/sites/default/files/documents/files/PRE-EMPLOYMENT_INQUIRIES.pdf). Employers must also have a basis for denying employment based on the applicant’s prior criminal conduct that relates to the connection between the job and the job requirements.
Arizona’s fingerprinting and criminal history statute provides for the exchange of criminal justice information with any individual for any lawful purpose on submission of the subject’s fingerprints and the prescribed fee (A.R.S. § 41-1750(G)(4)).
In certain banking-related professions, it is unlawful to provide a written employment reference that advises of the applicant’s involvement in any theft, embezzlement, misappropriation, or other defalcation that has been reported to federal authorities (A.R.S. § 23-1361(G)).
However, an Arizona statute states that:
“no bank, savings and loan association, credit union, escrow agent, commercial mortgage banker, mortgage banker or mortgage broker shall be civilly liable for providing an employment reference unless the information provided is false and the bank, savings and loan association, credit union, escrow agent, commercial mortgage banker, mortgage banker or mortgage broker providing the false information does so with knowledge and malice.” (Ariz. Rev. Stat. Ann. § 23-1361 (H))
Employers should also remember to carefully comply with all federal and state Fair Credit Reporting Act requirements and technicalities, including the Ninth Circuit’s recent decision in Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017), which held that an employer violates the Fair Credit Reporting Act when it procures a job applicant’s consumer report after including a liability waiver in the same document as a statutorily mandated disclosure. See also A.R.S. §44-1691 et seq. Based on this case authority, any waiver of liability should be in a separate, standalone document.
(b) Medical history
Covered entities, including employers, employment agencies, labor organizations, and joint labor-management committees, cannot conduct a medical examination or ask a job applicant whether they are disabled (A.R.S. §§ 41-1461(3), 41-1466(A)). An employer may inquire as to the ability of an applicant to perform job-related functions. After an offer of employment has been made but before employment begins, an employer may condition the employment offer on the employee passing a medical examination if all employees are required to undergo such an examination, regardless of disability.
An employer cannot request an examination or inquire about whether one of its employees is disabled; however, an employer can make an inquiry or request an examination if it is shown to be job-related and consistent with business necessity (A.R.S. § 41-1466(C)). An employer may conduct voluntary medical exams of its employees as a part of an employee health program. The definition of a ‘medical exam’ excludes a test to determine the illegal use of drugs (A.R.S. § 41-1466(F)). Employers should remain aware of their obligations under the Americans with Disabilities Act and guidance from the U.S. Equal Employment Opportunity Commission regarding medical inquiries and examinations, available here.
(c) Drug screening
Arizona law does not impose any restrictions on drug and alcohol testing of employees per se. If an employer conducts drug or alcohol testing in compliance with A.R.S. § 23-493 et seq., it will gain “safe harbor” protection against employee lawsuits arising from the tests, test results, or actions taken by the employer based on an employee’s impairment by, or use or possession of, drugs or alcohol. The safe harbor also protects an employer from actions to exclude an employee from a safety-sensitive position if it has a good faith belief the employee is engaged in drug use (including the legal use of medical marijuana), and that use could cause an impairment or decrease job performance (A.R.S. § 23-493.06).
(d) Credit checks
Arizona's version of the Fair Credit Reporting Act (A.R.S. § 44-1691 and following) requires employers to disclose to applicants if the employer relies on a report issued by a consumer reporting agency in taking adverse action (e.g., denying employment) against the applicant. An employer may be liable if it is grossly negligent or acts willfully and maliciously with intent to harm when using information from a consumer reporting agency for an employment purpose (A.R.S. § 44-1695(C)). This law is likely pre-empted by federal law (Loomis v. U.S. Bank Home Mortg., 912 F. Supp.2d 848, 854-55 (D. Ariz. 2012)).
(e) Immigration status
As of January 1 2018 no Arizona law restricts an Arizona employer’s ability to inquire as to the immigration status of a prospective employee.
Arizona employers can have their business and operating licenses suspended or permanently revoked for intentionally or knowingly hiring unauthorized workers (A.R.S. § 23-211 and following). Additionally, Arizona employers must verify the employment eligibility of a new hire employee through the E-Verify program and maintain a record of verification for three years or the duration of the employee’s employment, whichever is longer (A.R.S. § 23-214). An employer should be mindful not to inquire about national origin in complying with these laws.
(f) Social media
As of January 1 2018 no Arizona law restricts an Arizona employer’s ability to review prospective employees’ social media information. However, employers should be mindful not to restrict employees’ social media usage in a manner that would violate the National Labor Relations Act, which protects rights to engage in protected concerted activity about the terms and conditions of employment.
Wage and hour
What are the main sources of wage and hour laws in your state?
Arizona Revised Statutes govern the following:
- A.R.S. § 23-281 and following govern hours of labor for certain railroad, mine, laundry, and agricultural employees;
- A.R.S. § 23-311 and following govern minimum wages for minors;
- A.R.S. § 23-341 and following govern equal wage rates for male and female employees;
- A.R.S. § 23-350 and following govern payment of wages, generally;
- A.R.S. § 23-362 and following govern minimum wage and wage-related record keeping;
- A.R.S. § 23-372 and following govern accrual of earned paid sick time; and
- A.R.S. § 23-391 and following govern wages and hours of public employees.
What is the minimum hourly wage?
As of January 1 2018 the minimum wage in Arizona is $10.50 per hour. The minimum wage will increase to $11 per hour on January 1 2019 and $12 per hour on January 1 2010, pending legislation introduced in 2018 to end such automatic increases. The Arizona Industrial Commission has enforcement authority. The minimum wage statutes also include a requirement to post notices regarding employee wage rights (A.R.S. § 23-363 et seq.).
What are the rules applicable to final pay and deductions from wages?
When an employee is discharged, the employee must be paid the wages due to him or her within seven working days or by the end of the next regular pay period, whichever is sooner (A.R.S. § 23-353). When an employee quits voluntarily, he or she must be paid in the usual manner all wages due no later than the regular payday for the pay period during which the termination occurred. If requested by the employee, wages must be paid by mail. Wages include all non-discretionary compensation due in return for labor or services rendered by an employee for which the employee has a reasonable expectation to be paid, whether determined by time, task, piece, commission, or other method of calculation (A.R.S. § 23-350(7)).
An employer may deduct wages from an employee if it is required or permitted to do so by law, it has the employee’s prior written authorization (A.R.S. § 23-352), or there is a reasonable good faith dispute as to the amount of wages due (A.R.S. § 23-353(B)). Arizona law requires employees to provide annual written or electronic authorization to their employers if they wish to allow paycheck deductions “for political purposes” (A.R.S. § 23–361.02(A)).
If deductions are made from the employee’s final pay, employers should be mindful of wage and hour issues under the Fair Labor Standards Act and Arizona’s minimum wage laws.
Hours and overtime
What are the requirements for meal and rest breaks?
Arizona has no specific laws regulating meal and rest break requirements. However, employers are still subject to federal regulations mandating meal and rest break periods.
What are the maximum hour rules?
Except for certain employees, no law governs maximum hours worked for private employers in Arizona.
- A.R.S. § 23-281 and following governs hours of labor for certain railroad, mine, laundry, and agricultural employees; and
- A.R.S. § 23-391 and following governs wages and hours of public employees.
Arizona allows a “use it or lose it” vacation time policy as long as employees have a reasonable opportunity to use the leave and it is clear that they will not be paid those wages (based on policy or practice). Arizona’s new paid sick leave law requires separate accounting and has distinct accrual and rollover provisions.
How should overtime be calculated?
Arizona has a minimum wage law, but no overtime law. If the employer is covered by the Fair Labor Standards Act, federal overtime laws apply.
What exemptions are there from overtime?
Arizona has no overtime law for private sector employers.
What payroll and payment records must be maintained?
Arizona employers must maintain and preserve the payroll records of their employees in a safe and accessible location at the place of employment or at a central record-keeping office. If the records are stored at a central record-keeping office they must be made available to the Industrial Commission within 72 hours of a request for inspection (A.A.C. R20-5-1209). Payroll records include all time and earning cards indicating the amount of time worked, all wage-rate tables or schedules, and all records in support of additions or deductions from wages paid (A.A.C. R20-5-1210(A)). Payroll records should also contain information indicating the following for each individual hourly employee:
- full name;
- home address;
- date of birth;
- time of day and day of the week that the employee’s workweek begins;
- regular hourly rate and explanation of basis of pay, including commissions or any other basis of pay;
- hours worked each working day and working week;
- total daily or weekly straight-time wages due for hours worked during the working day or week, exclusive of overtime compensation;
- total overtime pay and calculation of overtime pay;
- total additions to or deductions from wages paid each pay period;
- total wages paid each pay period;
- date of payment and pay period covered by payment;
- the amount of earned paid sick time available to the employee;
- the amount of earned paid sick time taken by the employee in the relevant year to date;
- the amount of pay that the employee has received as earned paid sick time; and
- the employee’s earned paid sick time balance (A.A.C. R20-5-1210(B)).
An employee or designated representative can inspect any payroll records pertaining to the employee (A.R.S. § 23-364(D)).
According to the Arizona Administrative Code R20-5-1210(C)-(E), salaried employees, employees on a fixed schedule, and employees that customarily and regularly receive tips are subject to slightly different reporting requirements from those above. Specifically, the payroll records of salaried employees must contain sufficient detail to permit a determination that the salary received exceeds the minimum wage (A.A.C. R20-5-1210(C)). Arizona employers with salaried employees who are exempt under the Fair Labor Standards Act must maintain:
“records containing the basis on which wages are paid in sufficient detail to permit a determination or calculation of whether the salary received exceeds the minimum wage required under the Act, including a record of the hours upon which payment of the salary is based, whether full time or part time.”
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