HIRING PROCESS JUST GOT DICIER

Original Story:  WSJ.com

FOR FIRMS, APPLICANTS, ANY TALK OF EMPLOYER'S RELIGIOUS BELIEFS IS LEGAL MINEFIELD

 Joey Holland, the president of a car dealership in West Virginia, spends an hour interviewing every job candidate who has impressed his hiring managers. If the topic of Mr. Holland's religious views doesn't come up during that hour, he makes sure to address it at the end of the conversation.

"I feel like they have a right to know what we stand for," said Mr. Holland, a born-again Christian whose company hosts voluntary prayer meetings for employees and maintains a policy of not covering certain forms of contraception through its health-insurance plan.

Monday's decision by the U.S. Supreme Court allowing some employers to opt out of covering contraception on religious grounds may now provide legal cover for companies like Joe Holland Chevrolet and Imports Inc. But for both companies and job applicants who wonder how managers' faiths may affect their benefits, having a candid discussion about religious beliefs can be a legal minefield.

The court's decision, which came about after a challenge by the Hobby Lobby chain of retail stores to a section of the Affordable Care Act, is at "the intersection of two categories that can get companies in trouble—religious views and family planning," said Pamela Skillings, a workplace expert in New York City who provides interview coaching to job seekers and employers.

It is illegal for companies to ask prospective employees about their religious views, but individuals are free to question hiring managers and human-resources representatives about anything at all, including owners' religious beliefs and their impact on anything from benefits to corporate culture, say employment lawyers.

That can open the door to legal hazards, particularly if the manager uses that opening to pry—or even appear to pry—into a candidate's personal life.

Religion "is off-limits for employers," said Daniel Davis, special labor and employment law counsel at management-side law firm Proskauer Rose LLP.

At the same time, he said, "it's up to the job applicant what information they want to know about the company. With our clients, we do a lot of training around how, if an applicant asked a [sensitive] question, you should answer as directly as possible but you shouldn't engage in any type of follow-ups that would go to someone's religious beliefs or other type of protected information."

It can also be risky for job candidates to bring up these questions.

"As a rule, employees should avoid any explicit discussion of religion in the context of their hiring," said R. Scott Oswald, managing principal with the Employment Law Group, which represents workers. The company "will give you a summary of its health plan and that can be enough to make a decision if contraceptive coverage is critical to the applicant's decision."

Since candidates frequently ask for details about a prospective employer's benefits, companies that choose to deny coverage for contraceptives will be tipping their hand about owners' views, said Mr. Oswald. In addition, the Internet provides many clues about corporate culture. Mr. Holland's website, for instance, prominently features a fish symbol that is associated with evangelical Christianity and notes that the company's purpose is "to glorify and honor God."

At Weingartz Inc., which sells lawn mowers and tractors at five retail shops in Michigan, an explanation of benefits is handed out to prospective employees when a job offer is made, or earlier if the candidate requests it. The firm doesn't cover certain types of contraception thanks to an injunction that has exempted it from the Affordable Care Act requirement since it went into effect.

"A lot of questions come up about the health insurance plan so I'm guessing the contraception issue has come up," said President Dan Weingartz. "But to my knowledge, it has never been an issue of contention."

POM Still Allowed to Advertise Benefits

Story first appeared in USA Today.

POM Wonderful, which has claimed its pomegranate juice helps prevent disease and improve sex lives, took on federal regulators in a new advertising campaign Thursday.

A federal administrative law judge ruled last week that the company did not have the scientific backing to make some of its ad claims about POM juice and its ability to ward off and treat heart disease, prostate cancer and erectile dysfunction.

The Federal Trade Commission on Monday said the judge's decision upheld its charges that POM advertising was deceptive and misrepresented the science.

AS POM spokesman said the new ad campaign was designed to refute suggestions the company can no longer advertise its products' health benefits.

In a statement, the FTC said the staff was not going to comment on POM's advertising campaign because one or both parties are likely to appeal certain aspects of the administrative law judge's decision.

The FTC filed a lawsuit in 2010 that said POM violated federal law by making deceptive and often unsubstantiated disease-prevention and treatment claims. The FTC said these included ads stating pomegranate juice was beneficial for treating or preventing heart disease, prostate cancer and erectile dysfunction. But POM noted its health benefit claims were deemed to be supported by competent and reliable scientific evidence in the ruling.

Key in the decision: the difference between "benefits" and disease treatment or prevention.

In its new ads, POM used three excerpts from the judge's 335-page ruling that it says show it can still advertise the health benefits of its pomegranate juice. In one, a FTC Chief Administrative Law Judge cited expert testimony that pomegranate juice and extract supports prostate health. In another, he cites testimony that pomegranate juice provides a benefit to promoting erectile health and erectile function.

However, the ruling also says there's not enough scientific evidence or clinical proof to show pomegranate juice prevents, treats or reduces the risk of heart disease, prostate cancer or erectile dysfunction.

Even if POM didn't literally win the case, consumer psychologists call its ad campaign a sophisticated move.

Consumers are ready to battle, love to champion underdogs and consider the government to be a big ugly Goliath.

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