Best Hiring Practices WASPC Spring Conference, Spokane, Washington - PowerPoint Presentation

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Best Hiring PracticesWASPC Spring Conference, Spokane, WashingtonMay 23, 2017 Beth Kennar

© Summit Law Group 2017

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Hiring Legal Risks

Americans with Disabilities Act

Pre-employment examinations

Failure to accommodate

Title VII

-Discriminatory refusal to hire

Title VII

Disparate Impact

Negligent Retention/Supervision

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Roadmap

Job Descriptions

Screening Applications

Interviews

Background Checks

Job Offers

Pre-employment Medical Exams/Drug and Alcohol Testing

Hiring and Probation

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Essential job functionsShift workInclude timely and regular attendance?Job duties“other duties as assigned”Minimum requirementsPre-conditions for hiring (e.g., background check, drug screen)Technical, physical and other requirements (e.g., strong communication skills)

Updating Job Descriptions

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Why Job Descriptions Matter

Jacobs. V. N.C. Admin Office

(4

th

Cir. 2015)

E

mployee with situational anxiety couldn’t handle front counter work. Question for jury whether an essential function, where job description didn’t mention requirement.

Minnihan v. Mediacom

(8

th

Cir. 2015)

Ops Supr. argued driving not essential, as rarely required. In finding driving is essential function, court noted job description says “valid driver’s license with good driving record

required.

”

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Red Flags – Initial Screening

Short periods of successive employment

Termination

Demotion

Discrepancies in application materials

No references from prior supervisors (references from co-workers only)

Overqualified

Email

addresses

like

ihateworking@gmail.com

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Avoiding Discrimination in Hiring

Do not consider membership in a protected classification

What you don’t know can’t hurt you

Do reasonably accommodate disabled applicants

Exception to the Golden Rule

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Protected Classifications

Race and color

National origin (

e.g.

, citizenship, accent, etc.)

Sex

Age (40 or over)

Religion

Disability

Marital status

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Protected Classifications Cont’d

Pregnancy and maternity

Sexual orientation including gender identity

Honorably discharged veteran or military status

Genetic information (

e.g.

, genetic propensities, family medical information)

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Disability Accommodation in Hiring

“The Agency reasonably accommodates applicants with disabilities. To request an accommodation, contact _________.”

No duty to accommodate if:

Undue burden

Modifies a bona fide occupational qualification

Do not consider information relating to a request for accommodation in the hiring process

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Interviewing

Vital screening tool

Communication

Demeanor

Emotional intelligence

Select a Panel

Multiple perspectives can result in better outcome

Third parties OK

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Interviewing: Preparation

Prepare questions in advance

Focus on job-related skills and experience

Refer to the job description

Review applications to identify areas that may need probing with candidates

Ask open-ended questions to get the applicant talking

Ask tough questions (have you resigned in lieu of termination)

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Inappropriate Areas of Questioning

Age

Criminal History

Disability

Family

Genetic information

Height and weight

Military service

Name (national origin, marital status)

National origin

Organizations/clubs

Photographs

Pregnancy

Race

Religion

Residence

Sex/gender

Sexual orientation

Worker’s compensation

EEOC complaints

Union activity

Whistleblower

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True or False?

It is OK to ask an applicant’s prior employer how many L&I claims they filed.

Older applicants should be asked how many more years they plan on working.

You can ask

an applicant who is a parent if she

has any commitments that would interfere with

her ability

to work full-time.

If an applicant speaks with an accent, it’s an appropriate icebreaker to ask where they’re from.

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True or False?

You can ask an applicant about his father’s health.

You

should

ask job applicants if they are disabled.

You

should ask

applicants whether they celebrate Christmas.

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Golden Rule

If you plan to ask one applicant a question on a sensitive topic, you should ask all candidates the same question.

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WAC 139-07-020

Personal

history statement. The applicant shall complete and submit to the employing agency a personal history statement on a form prescribed by the employer before the start of a background investigation. The personal history statement form shall contain questions and answers which aid in determining whether the person is suitable for employment as a certified peace officer or a reserve officer. The questions shall address whether the applicant meets the minimum requirements for employment, has engaged in conduct or a pattern of conduct which would jeopardize the public trust in the law enforcement profession, and is of good moral character

.

The personal history should not make prohibited inquiries.

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Background Checks

Prior employers

Arrests and convictions

Social media

Credit checks

Polygraph

Medical exams

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Reference Checking

Prior employers

Should

be the most valuable tool to learning relevant information about the applicant

Risk of litigation for defamation and tortious interference has

limited their value

RCW 4.24.730 provides immunity if certain conditions met.

The disclosed information must relate

to: (a) The employee's ability to perform his or her job; (b) the diligence, skill, or reliability with which the employee carried out the duties of his or her job; or (c) any illegal or wrongful act committed by the employee when related to the duties of his or her job

.

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Improving Chance of Honest Reference

Obtain

a signed release that allows you to contact former

employers

Prepare

set of questions that will apprise you of significant

problems

Discipline records of public employees are a public record – request copies under the Public Records Act?

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Reference Check Questions

Skills

Attendance (average/below average) –

not why

Discipline

Satisfactory performance ratings

Resignation in lieu of termination

Worked well with others, communication skills

Anything else I should know

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Criminal Background Checks

Required for law enforcement

Reduces liability exposure (negligent hiring,

respondeat superior

)

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EEOC’s Concerns

EEOC’s

concerns:

Arrest and conviction rates are disproportionately high for

certain races/ethnicities

Many criminal record data bases contain incomplete or inaccurate information

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EEOC: Arrests

Exclusion

based on arrest alone is not job-related or consistent with business necessity

Not proof of criminal conduct; presumption of innocence

May consider conduct underlying the arrest if job-related

Would require independent investigation into

evidence

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Convictions

Reliance on conviction must be job related and consistent with business necessity

State law requires exclusion for felony convictions. What about minor convictions?

According to EEOC, employer must use a Targeted Screen that allows for Individualized Assessment

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Targeted Screen Elements

Nature and gravity of the

offense/conduct

Time

that has passed

(since

the

offense

or completion of

sentence)

Nature

of the

job

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Individualized Assessment

If the Targeted Screen disqualifies an applicant, the employer

should provide

an opportunity

for

Individualized Assessment:

Notify the applicant

they may

be

rejected

Give

the applicant the opportunity to convince the

decision maker they should

not be

rejected

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Credit Checks

For

applicants who will have access to money or finances

Fair Credit Reporting Act governs

Explicit notice on a stand-alone document

Written permission

Certification of compliance

Notice prior to taking any adverse action

Notice of adverse action

Who supplied the report

Right to challenge inaccuracies

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Since 2013, Washington law prohibits:Requiring disclosure of log-in infoShoulder surfingRequiring acceptance of “friend” requestRequiring change in privacy settings to allow accessUsing log-in credentials inadvertently obtained through employer’s monitoring of corporate electronic resourcesApplies to applicants and employeesCan recover actual damages, $500 penalty, and attorney’s fees and costs

Social Media Searches

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Pre-employment Medical Exams

Drug and alcohol testing

Polygraphs

Physicals

Psychological exams

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Pre-Employment Medical Exams

Under the ADA, an employer may

not ask a job applicant to answer medical questions or take a medical exam before making a job offer.

Pre-employment medical examinations can only be made after a conditional offer of an employment. To constitute a real conditional offer, the exam must be the last step in the hiring process.

Once

a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer has reason to believe an employee would not be able to perform a job successfully or safely because of a medical condition.

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Conditional Job Offers

If hiring includes a medical test, a conditional job offer is required before the test

“We are pleased to make you a conditional job offer for the position of _______. This job offer is conditioned on

: _______________.”

After

testing, interviewing, scoring, background investigation, reference checking, criminal background check, driver’s license check, and all other non-medical inquiries

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Non-FTA Drug and Alcohol Testing

Safety sensitive jobs (police officers, deputies) OK

Non safety sensitive jobs prohibited

A public employer violates the Washington State Constitution’s right to privacy by requiring pre-employment drug testing for non safety sensitive positions.

City of Seattle

, 102 Wn. App. 795 (2000)

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Pre-employment Psychological Exams

State law requires a psychological exam (and polygraph) for employment of police officers

Must repeat if lapse in peace officer certification from break in service of more than 24 months

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Hiring & Probation

Written job offer

Position

Effective date

Starting wage rate

Union

Probationary period

Signature line for employee

Notify unsuccessful applicants

Probation: “

Speak now or forever hold your peace”

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Questions?

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Thank You!