Wacky ad a lesson in do’s, don’ts

That Craigslist ad posted by a San Francisco couple looking for a personal assistant that went viral last week is definitely wacky. But it also provides an object lesson in what employers can — and should not — say when they’re hiring household help in California.

“There are some things in there that would be problematic if they are covered by civil rights laws,” said attorney Chaya Mandelbaum, a partner with Rudy Exelrod Zieff & Lowe who represents employees. But California’s Fair Employment and Housing Act, which prohibits employers from discriminating against employees and job applicants based on a long list of

protected categories, applies to employers with five or more employees. Most people hiring household help have fewer than five.

The ad was posted by an unidentified couple who describe themselves as fortysomething biotech workers who don’t have time to cook, do laundry or dishes, put away groceries, keep cut flowers alive, schedule appointments, return merchandise, wait on hold for customer service, teach the dog tricks, hem pants, haul stuff to Goodwill, hang pictures, reorganize the closet, polish fingernails or research investment opportunities.

They’re looking for someone who can do all that while possessing the personality of the Dalai Lama combined with a Fortune 500 CEO.

“You aren't dramatic and you aren't having regular melt-downs. You're warm, welcoming, and always down for a good time,” the ad says. The person can’t be “tightly wound,” nor “lazy or sloth-like.” The applicant must be levelheaded, down-to-earth, humble “and always willing to admit when you're wrong.” He or she cannot be stubborn or defensive and must be confident, empathetic and detail-oriented.

The nearly 1,800-word post sounds, in parts, more like a personals ad than a job listing. “You enjoy making things smell nice,” it says. “You are generous with your attention and love.”

It even states a dress code, depending on the person’s style: “e.g. you're ‘bohemian chic’ but avoid the giant wedges that will prevent you from hustling around town.”

The pay was originally advertised at $25 to $30 per hour, but the couple changed it to $15 to $35 “due to high demand.” The hours are about 40 per week, but the assistant must be “on-call 24/7 for emergencies.”

The applicant can’t be a smoker or have more than five alcoholic drinks per week.

“There are some things in there that would be problematic if they are covered by civil rights laws.” Chaya Mandelbaum, partner, Rudy Exelrod Zieff & Lowe

Bonus points are given if the person has “long hair” and knows how to gently untangle knots, “can make oneof-a-kind wood furniture pieces,” can “swim well in the ocean” and is “physically strong.”

As strange as these requirements seem, only a few could pose legal problems, experts say.

The California labor code prohibits employers of any size from taking adverse employment action against employees for lawful nonwork activities, said Bob King, founder of Legally Nanny, a household-employment law firm in Irvine. Because smoking and drinking alcohol is lawful, prohibiting those activities outside of work could violate the code, he said.

The “no past criminal record” requirement is questionable, Mandelbaum said.

Under the state labor code, employers cannot consider or ask job applicants about certain offenses, including any arrest or detention that did not result in conviction; any conviction in which the record has been sealed, expunged or eradicated; any participation in pretrial or post-trial diversion programs; or any nonfelony conviction for marijuana possession that is more than 2 years old.

These laws apply to employers of any size. Saying “no past criminal record” could be deemed overly broad, Mandelbaum said.

San Francisco’s Fair Chance Ordinance has even stricter rules regarding arrest and conviction records, but it applies only to employers with 20 or more employees.

California’s Fair Employment and Housing Act prohibits employers with five or more employees from discriminating against applicants and employees because of their race, color, ancestry, national origin, religion, mental or physical disability, gender, sexual orientation, gender identity, gender expression, medical condition, genetic information, or marital, military or veteran status.

A larger employer that said an applicant must be “physically strong” could be violating both the California act and the Americans with Disabilities Act (which applies nationwide to employers with 15 or more employees), King said.

A covered employer can state essential job functions, such as the ability to lift 40 pounds, and ask whether an applicant can perform these functions with or without accommodations. But “you can’t say (the person must be) ‘physically strong,’ ” King said.

Often, parents will say, “I want a young nanny in her 20s or 30s or I want a Mexican nanny.” That would be illegal if they had five or more employees, but OK if they have fewer. “Families can get away with all kinds of crazy stuff companies can’t,” King said.

Employers of all sizes also must comply with wage and hour laws, including minimum wage and overtime requirements.

As for being on call 24/7, “it depends on what that means,” Mandelbaum said. On-call hours at a work site must be paid for, the state Division of Labor Standards Enforcement says. Whether employers must pay employees for on-call hours off the work site depends on what kind of geographic and other restrictions they impose.