Meg Whitman’s “Nannygate” Records are a Good Reminder that Employers Should Consult Legal Counsel

Published: October 6, 2010

According to recent media reports, California gubernatorial candidate Meg Whitman released employment records to refute allegations that she knowingly hired an illegal immigrant as a nanny and housekeeper in 2000. These documents, which The Sacramento Bee posted at http://blogs.sacbee.com/capitolalertlatest/Diaz%20Forms.pdf, provide a good illustration as to why California employers should use caution before adopting employment applications, forms, or policies of other employers. Regardless of their source, using such materials without first consulting a lawyer may lead to problems.

For example, the Voluntary Candidate Questionnaire form that Whitman had her nanny submit inquires about the applicant’s medical history (e.g., “have you ever been told that you have Arthritis, Diabetes, Hernia, Emotional Problems, . . . Cancer, Heart Disease,” etc.). It also asks about the applicant’s marital status, and potentially pries into the applicant’s sexual orientation, not to mention other seemingly private topics that may not be job related in many instances. Posing such inquiries to applicants or employees in the Golden State can increase an employer’s exposure to claims alleging disability discrimination, marital-status discrimination, or sexual-orientation discrimination – particularly if the employer is covered by the California Fair Employment and Housing Act or other anti-discrimination laws. The fact that the former head of a major publicly traded corporation utilized such a form does not mean that the form is suitable for all types of employers or positions.

In sum, employers who have not had an attorney review their application or other employment forms or policies for some time would be well advised to do so before 2011, when many new laws governing the workplace go into effect.