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4B. HR: Before the Welcome Letter: Hiring Legal Lessons
Bad hiring decisions are a primary cause of many employee problems and legal challenges.
HIRING: WHERE IT ALL BEGINS
Your goal should be to hire qualified candidates who fit your culture without creating risks for co-workers, your organization or the people you serve.
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HIRING: WHERE IT ALL BEGINS
Think of it this way:• The hiring process is
similar to a courtship.
• Before you offer and before the applicant accepts, you had better make sure this applicant is someone with whom you and your organization can live and work for an extended period of time.
When hiring employees, you have to balance:
• Finding qualified employees
• Finding qualified employees who fit your culture and needs
• Properly screening and selecting
• Avoiding/reducing legal risks
HIRING: WHERE IT ALL BEGINS
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HIRING TIP
Slow down the hiring process
• Avoid negligent hiring claims– By other employees and by clients
• Avoid discrimination claims– Failure to hire claims/improper
questions
• Avoid employees likely to be trouble– Discipline problems leading to legal
challenges
• Obtain agreements and documentation– Necessary to defend litigation
HIRING – LEGAL OBJECTIVES
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Avoid Negligent Hiring Claims
• “Scope of employment” concept– Respondeat Superior: The
employer is responsible for damages caused by the employee while performing work in the course and scope of his employment by the employer
HIRING – LEGAL OBJECTIVES
• Avoid Negligent Hiring Claims
• Good news– Most really bad things
employees do are outside the course and scope of employment
• Bad news– Negligent hiring claims
bypass Respondeat Superior
HIRING – LEGAL OBJECTIVES
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Negligent Hiring Case• Employee is hired after
termination from prior job
• New supervisor knows termination was for harassment
• Employee kisses hands of female co-worker
HIRING – LEGAL OBJECTIVES
• He is disciplined verbally for kissing hands
• He later goes for a lips kiss in the parking lot before work
• Then he is fired for lying on his job application
• Negligent hiring -settlement
HIRING – LEGAL OBJECTIVES
Negligent Hiring Case
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Have established hiring process/procedure that includes:
• Completed application by every applicant
• Thorough interviews
• Documented background checks
• Documented reference checks
• The ability to pass on questionable candidates
HIRING TIP
Avoid Failure to Hire Claims
The law prohibits employers from refusing to hire applicants based on traits the law has deemed protected.
HIRING – LEGAL OBJECTIVES
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• Race/Color• Sex• Pregnancy• National Origin• Military Status• FMLA users• Whistleblowers
(retaliation)• Marital status• Religion
• Color
• Citizenship status
• Age
• Disability
• Union supporter
• GINA
• Sexual Orientation
• Gender Identity
• State law
Protected Categories:
HIRING – LEGAL OBJECTIVES
Are you required by law to allow every applicant to complete an employment application?
HIRING – EMPLOYMENT APPLICATIONS
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• Which applicants should complete applications?
• What if the applicant has submitted a résumé.
HIRING – EMPLOYMENT APPLICATIONS
• Non-discriminatory hiring practices
• Negligent hiring issues• After-acquired
evidence defense• Authorizations for
background checks• Defensive agreements
Every candidate must complete a job application
HIRING – EMPLOYMENT APPLICATIONS
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1. Application is specific to your organization
2. At-will statement
3. Authorization for drug test
4. Authenticity of information provided
5. Shelf-life of the application
Start with a good application that has these key elements:
HIRING – EMPLOYMENT APPLICATIONS
Failure to Hire Case
• Applicant is interviewed by Director
• No application completed• Offer is made, then application
completed• Director discovers employee
worked for agency before and sued
• Offer withdrawn after employee quits other job
• Applicant sues for retaliation and breach of contract
HIRING – EMPLOYMENT APPLICATIONS
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Every manager involved in the hiring process should study the application before interviewing the applicant or making a job offer.
HIRING – EMPLOYMENT APPLICATIONS
Every manager involved in the hiring process should look for lawful reasons to hire and not hire each applicant.
HIRING – EMPLOYMENT APPLICATIONS
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• Criminal record
• Job history/experience
• Gaps in job history
• Termination history
• Background questions
• Eligibility to work questions
• Qualification for positions
Examine the application carefully. Look for:
HIRING – EMPLOYMENT APPLICATIONS
Possible red flags:• Failure to complete the application in full (inability
or refusal to follow instructions)
• Scratch-outs (sloppy, made up story)
• P.O. boxes for addresses (unstable)
• Short term residencies (unstable)
• 800 numbers for phone numbers or no phone (unstable)
• Question about criminal convictions left blank (something to hide or just sloppy)
• Multiple short term jobs (unstable, bad employee)
HIRING – EMPLOYMENT APPLICATIONS
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Possible red flags:• Information missing from employment history (untruthful?,
hiding negatives, failure to follow directions)
• Gaps in employment history (unmotivated, unemployable, “out of the job market”, on major bender)
• Reasons for leaving prior jobs unreasonable (untrustworthy)
• “Victim like”: responses to question of why they left prior jobs (blames others, refuses to accept responsibility)
• Failure to sign the application (sloppiness or trying to avoid consequences?)
HIRING – EMPLOYMENT APPLICATIONS
The job application is the applicant’s “best foot forward” and usually your “first impression” of that person as a potential employee.
No matter how skilled you are, you cannot change someone’s true character.
HIRING – EMPLOYMENT APPLICATIONS
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Avoid Failure to Hire Claims
Are you required by law to interview every applicant who completes an employment application?
HIRING – INTERVIEWS
Prepare for interview:• Study the application and resume
• Make notes and follow-up during interview:‒ Left “for better opportunity,” was it?‒ “Mutual decision” - explain ‒ “Victim-like ” responses‒ Gaps in employment - explain‒ Job hopping - explain‒ Short term residences‒ No apparent career path or
advancement‒ Incomplete application
HIRING – INTERVIEWS
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• Listen to the applicant
– The 80/20 Rule
– Ask follow-up questions
• Ask questions that reveal the applicant’s personality and habits
• Avoid illegal inquiries
HIRING – INTERVIEWS
General interviewing rule:Managers may not ask questions that discriminate based on protected categories, OR, that are non-discriminatory but indirectly tend to screen out protected categories
HIRING – INTERVIEWS
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Goal: Is the applicant qualified for the job?
Age
OK?
• How old are you?
• When did you graduate?
Better
• Are you 18 or older?
• Do you have a degree?
HIRING – INTERVIEWS
Goal: Will the applicant be able to communicate effectively?
Goal: Is the applicant qualified to work?
National Origin
OK?
• Where is your accent from?
• Are you an illegal alien?
Better
• Do you speak Spanish?
• Can you provide proof of authorization to work in the US?
HIRING – INTERVIEWS
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Goal: Determine if applicant able to work scheduled hours
GenderOK?
• Do you have children?
• Do you have daycare?
• When is your baby due?
• Do you have plans for a family?
Better
• Can you work nights and weekends if needed?
• Can you work the schedules for this job?
• You’re kidding, right?
• Really?
HIRING – INTERVIEWS
Goal: Will you be able to perform essential job functions –work on weekends?
Religion
OK?
• What church do you attend?
Better
• Can you work nights and/or weekends if your work requires it?
HIRING – INTERVIEWS
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Goal: Will you be able to perform essential job functions?
Disability
OK?
• How is your health?
• Have you been hurt on the job?
Better
• Can you perform essential functions?
• FORGET ABOUT IT!!!!!!!
HIRING – INTERVIEWS
Sample Interview Questions
• Tell me about your last three jobs, what you liked least about them, and what you liked most
• If I called your current supervisor, how would he/she rate your performance
• What are you trying to avoid in your next job?• What kind of people do you like and dislike
working with• Tell me a little about yourself
HIRING – INTERVIEWS
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• Do you currently use illegal drugs?• Ever been fired or asked to resign?• Do you work well under pressure? Give
example• Do you have adequate transportation to work?• What do you think about working overtime
hours?• What do consider acceptable attendance?• Are you a patient person? Give me an example
of when you demonstrated patience.
HIRING – INTERVIEWS
Sample Interview Questions
• How well did you get along with your current/last supervisor?
• What are some things you don’t/didn’t like about your current/last supervisor?
• How you would define “good work ethic” and “hard worker”?
• How would you feel about having to work harder and longer because a coworker often missed work?
Sample Interview Questions
HIRING – INTERVIEWS
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• Length of employment– “You can look forward to a long career
here”– “After your probationary period, you will
become a permanent employee”– “Just do a good job, and you won’t get
fired”– “Nobody ever gets fired unless they
really mess up”
HIRING – INTERVIEWS
Topics to Avoid
What do you tell an applicant at the end of the interview?
HIRING – INTERVIEWS
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• Criminal
• Credit
• Drug test
• References
• Social Media?
HIRING – BACKGROUND CHECKS
• When using a 3rd party to conduct background checks you must comply Fair Credit Reporting Act (FCRA) requirements:‒ Prior authorization
‒ Copy of report
‒ Pre-adverse action notice
‒ Notice of rights
• FCRA lawsuits are on the rise – mostly alleging use of improper forms
HIRING – BACKGROUND CHECKS
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Criminal Background Checks-
• Mandatory for some positions
• Some states/towns/ counties have “ban the box” rules
• EEOC’s individual analysis requirement
• Consistently apply policy
HIRING – BACKGROUND CHECKS
• Employee terminated and sues for race discrimination
• Employee concealed criminal record for drug possession
• Lawyers move to dismiss case based on employee’s fraud
• Court refused to dismiss because evidence showed employer hired another employee with marijuana conviction
HIRING – BACKGROUND CHECKS
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EEOC’s view:
• Arrest or conviction not automatic disqualification for employment
• Consider:
The nature of the offense(s)
When they occurred
The nature of the job for which he or she is applying or currently holds
HIRING – BACKGROUND CHECKS
Then ask yourself:
Does this person’s criminal record render him or her unsuitable for this position?
HIRING – BACKGROUND CHECKS
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Credit Checks• Same FCRA
requirements
• Disparate impact concerns even greater
• Job correlation is critical
HIRING – BACKGROUND CHECKS
Drug Tests• Pre-employment testing
is permitted
• Random and periodic testing is prohibited in some states
• Reasonable suspicion testing generally is permitted
HIRING – BACKGROUND CHECKS
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Reference Checks• Do them
• Application should authorize
• Document efforts and results
• Negligent hiring standard generally-“knew or should have known.”
HIRING – BACKGROUND CHECKS
Social Media?According to a recent survey, nearly half (65%) of US employers report using social networking sites to dig up information about job candidates
HIRING – BACKGROUND CHECKS
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HIRING – BACKGROUND CHECKS
Race
Marital Status
ReligionPolitical Views
HIRING – BACKGROUND CHECKS
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HIRING – BACKGROUND CHECKS
Age
Familial Responsibility
Sexual Orientation
USING THE INTERNET FOR SCREENING
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Who has final approval on the hiring decision?
HIRING
What do we tell the applicants you don’t hire?
HIRING
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Thank You
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