Life Cycle of an Employee: Assessment, Selection, Onboarding

Polsinelli PC. In California, Polsinelli LLP

Life Cycle Assessment/Selection/Onboarding

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Previously on “Life Cycle” – Recruitment and Talent Acquisition

We learned:�Why exactly are we hiring?� Importance of the job description�Compensation complications�Posting for the job�Recruiting do’s and don’ts�Effective resume screening


What We Will Cover Today

� Employment Screening� Immigration Considerations� Protecting Your Intellectual Property� Arbitration and Dispute Resolution

Clauses� Employee Benefits Considerations


Employment Screening


Aptitude and Qualifications Testing

• Potential for Title VII / ADA / ADEA / GINA Concerns

• EEOC v. Ford Motor Co. (2005)

• EEOC v. Dial Corp. (2005)

• EEOC v. Abercrombie & Fitch (2004)

– “Look Testing”

• State Law Requirements


Testing and the ADA

� Employers cannot use qualification standards, tests, or other criteria that screen out, or tend to screen out, candidates with a disability, unless the criteria are job-related and a business necessity. 42 U.S.C. § 12112(b)(3).

� If criteria does screen out candidates with a disability, the employer must show that the criteria (1) are a legitimate measure for the subject job; (2) are related to the essential functions of the subject job; and (3) cannot be met by a disabled candidate with a reasonable accommodation.

� A qualification standard may include the requirement that a candidate not pose a “direct threat” to the health or safety of others in the workplace. 42 U.S.C. § 12113(b).


Testing, ADA and Title VII

� Employment tests must accurately reflect needed skills for the job. 42 U.S.C. § 12112(b)(7).

� Employment tests must be administered to eligible candidates with disabilities in formats that do not require the use of the candidates’ impaired skill(s). 29 C.F.R. § 1630.11.

� Employment tests cannot be “designed, intended or used to discriminate because of race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(h).


Testing, ADA and Title VII (cont’d)

• Pending Cases

• Test Questions:

⁻ “I sometimes get confused by my own thoughts and feelings.”

⁻ “Over the course of the day, I can experience many mood changes.”

⁻ “I am always happy.”


Medical Exams

Before Making a Job Offer:

• An employer cannot ask the candidate if she has a disability, though an employer may ask about her ability to perform job-related functions, provided that the questions are not phrased in terms of disability. 42 U.S.C. § 12112(d)(2); 42 C.F.R. § 1630.13(a).

• If a candidate has a known disability that may interfere with her performance of job functions, the candidate can be asked to describe how these functions will be performed.

• If a known disability would not interfere with a candidate’s performance of job functions, the employer can only ask her to describe how she would perform those functions if it asks all applicants for that position.


Medical Exams (cont’d)

� After making a job offer, an employer may require a medical exam of the candidate and condition employment on its passage, but only if a medical exam is required of all applicants and the results are kept confidential (42 U.S.C. §12112(d)(3)).

� However, a medical exam of an employee must be job-related and justified by business necessity (however, voluntary medical exams, such as for an employee health program, is permitted). 42 U.S.C. § 12112(d)(4).

� And don’t forget about state law requirements!


Drug and Alcohol Testing

� Possible ADA Implications

� EEOC v. Steel (2013)

� State Law Requirements


Background Checks

� The federal Fair Credit Reporting Act (“FCRA”) applies to employers’ credit and/or criminal background checks of employees and job applicants if performed by a third party.

� To comply with the FCRA before conducting such checks:

1) The employer must first make a clear, accurate, written disclosure (in a standalone document) of its intent to obtain a consumer report on the individual to that individual, and

2) The employer must obtain that individual’s written permission (the individual can do so by signing and returning the disclosure form).


Background Checks (cont’d)

� Pre-Adverse Action Notification to Candidate

� Must Provide Candidate with Notice of Rights under FCRA

� Must Give Candidate Reasonable Period to Review and Correct Report Errors Before Acting (10 Days Accepted)

� Must Then Provide Final FCRA Notice Informing Candidate of Decision



The employer must then certify to the third-party provider of the consumer report that it:

1) provided the standalone disclosure form to, and received written permission from, the subject individual;

2) will comply with the FCRA regarding use of the report; and

3) will not use the information in the report to violate any equal employment opportunity laws.



� Don’t forget state law requirements.

� Potential Title VII Implications.

� Check the Box Legislation.


Immigration Considerations


Sponsorship?

� Candidate is worth the time and expense of sponsorship� Is there an employment visa category available?� Are there any obstacles that may interfere with

successful filing of an employment-based visa� Is there a visa type/ number available?

� Do you have tangential issues such as export controls/itar?

� Sponsorship requires planning� not always available, may not meet timing needs

� Responsibilities must be understood

� Example: salary requirements, maintaining Public Access Files

� Generally prospective employees will identify need for sponsorship prior to hire– Best Interests of all parties


IRCA Compliance - The Basics

� It is illegal to knowingly hire or continue to employ anyone not legally authorized to work in the U.S.

� Policies and Procedures must balance our compliance queries to avoid discrimination claims

� We are limited in what we can ask prospective employees during the hiring process


Offer Accepted – What now?Form I-9

� Meet the time deadlines for completing the Form� By Day 1- Section 1� By Day 3- Section 2

� The “Thursday Rule”

� Original Documents� No “skyping”/Facetime� No extensions� Consistency is critical


E-Verify Compliance

� E-Verify is voluntary � Federal Contract FAR Rule� State Mandates


Form I-9 Liability Can Be Expensive

� FINES� $375 to $16,000 for Knowing Hire/Continuing

to employ violations� $110 to $1,100 for Substantive Uncorrected

Technical violations

� DOJ, ICE DOL are involved in various types of compliance


Staffing Companies & Immigration Compliance

� Fairly simple:� Cannot use a shield� If you have knowledge of unlawful status of

contractors you are a “joint employer”� Review your agreements and add carefully

drafted immigration compliance language


Protecting Your Intellectual Property


Types of Intellectual Property

� Copyright� Patent� Trade Secret


Uniform Trade Secrets Act

"Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.


Contract Terms to Establish Ownership

� Invention Rights and Assignment�Work-for-Hire�Prior Inventions�Third-Party Inventions


Contract Terms to Restrict Documents

�Confidentiality/Non-Disclosure�Return of Company Property�Restrictive Covenants�No Conflicting Agreements and

Indemnification


Restrictive Covenants

� Non-compete

� Non-solicit


Scope of Restrictive Covenants

� Time

� Geographic area

� Prohibited activities


Arbitration and Dispute Resolution


Goals of Internal Dispute Resolution Procedures

� Learn about and resolve issues early� Improve employee relationships� Improve employee satisfaction� Create possible defense to a dispute


Types of Procedures

� Open Door Policy � Human Resources� Written Grievance� Ombudsman� Review Committee� Outside Mediator or Arbitrator


Keys to Internal Dispute Procedures

� Explain the procedure� Require timely submission of disputes� Ensure that the people involved are

credible, neutral, and fair� Prohibit retaliation� Explain what the result may be


Goals of Arbitration Provisions

� Avoid publicity of disputes� Avoid getting stuck in back-logged courts� Avoid juries� Avoid costly and protracted discovery� Avoid certain damages


Federal Arbitration Act

A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable and enforceable.


Uniform Arbitration Act

An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.


Important Components of Arbitration Provisions

Be sure to address:� types of claims covered� damages and other relief� payment of the arbitrator’s fees� rules and procedures� summary judgment, discovery, and rules of

evidence� type of award


Employee Benefits Considerations


Employee Benefits

� Types of Benefits– Retirement– Bonus Arrangements– LTIPs– SERPs/deferred compensation plans– Vacation

�How accrued– Holidays


Employee Benefits

� Types of Plans (continued)– Welfare Plans

�Medical� Life�Disability (STD and LTD)�BTA�EAP�Cafeteria Plan


Employee Benefits

� Handbook benefits description– Retain right to change benefits – Provide plan documents prevail– General description– Receipt


Employee Benefits

� Benefit Plan enrollment– Eligibility– Election timing– Beneficiary designation forms

�Retirement plans–Spousal Consent

� Life insurance


Employee Benefits

� Disclosure requirements– SPD distribution

�What constitutes�Timing

–90 days after coverage–Consider providing at DOH

�Electronic� Initial COBRA notice


Employee Benefits

� Penalties for disclosure violations– $110 per day– Criminal

�Up to 10 years� $100,000� $500,000 for companies

real challenges. real answers. smreal challenges. real answers. sm

Polsinelli provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship.

Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements.

© 2015 Polsinelli PC. In California, Polsinelli LLP.Polsinelli is a registered mark of Polsinelli PC

Life Cycle of an Employee: Assessment, Selection, Onboarding

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Transcript of Life Cycle of an Employee: Assessment, Selection, Onboarding