Streamlining Your Recruiting Process from Interviewing to ... · business trends. EXPERIENCED :...

Streamlining Your Recruiting Process

from Interviewing to Onboarding

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Streamlining Your Recruiting Process

from Interviewing to Onboarding

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Streamlining Your Recruiting Process From Interviewing To Onboarding

Lorman Education ServicesPatrick J. Doran, Esquire

1

The Interview Process

Legal Restrictions – Pre-Hire

Pre-Employment Inquiries

• The Obvious: No Inquiries Regarding:– Race;

– Creed;

– Religion;

– Color;

– Sexual identity/preference

3


• Age;– Except to maintain apprenticeship

requirements, verify applicant as above minimum age limits for job in question, etc.


• Citizenship

• Nationality;– Including inquiries concerning language

only used by applicant at home.

• Medical condition/history

• Workers Compensation History

4

Pregnancy and Related Discrimination

• Don’t ask / say:– “Are you pregnant?”

– “Planning on having children?”

– “Are you sure you can take this job with a newborn at home?”

– “Since you’re a mom, you aren’t going to be able to pull as many hours.”

– “How many kids do you have?”

– “How old are the kids?”

Marital Status Discrimination

• Not explicitly prohibited by federal law, but may be evidence of intent for unlawful discrimination

• Many State/Municipal laws

• Don’t ask / say:– “What does your spouse do?”

– “Is this your married name?”

5

Prohibited Inquiries Under the National Labor Relations Act

• Unlawful to refuse to hire an individual based upon the applicant’s:– Union activity;

– Union membership;

– Opinions regarding unionization.

This Is A Real Problem

Center for Public Affairs Research Poll:

• 35% asked about AGE

• 35% asked about MARITAL STATUS

• 11% asked about PREGNANCY

• 9% asked about RELIGION

6

Polygraph Testing

• Federal law: The Employee Polygraph Protection Act of 1988 virtually bans the use of lie-detector tests for pre-employment screening of private sector employers.

• Very few exceptions• Even where one of the exceptions applies, the

law strictly limits the manner in which a polygraph can be conducted and other uses that can be made of the information obtained from the test.

• Very few exceptions for certain employers authorized to manufacture, distribute or dispense controlled dangerous substances.

• Lesson: Do not require polygraph examinations without the advice of counsel.

7


Criminal and Credit Background Checks

Setting the Stage

• Employers are using criminal and credit background checks as an employment screen more than ever before.

• A study conducted by the National Employment Law Project discovered that 1 in 4 adults (65 million Americans) have a criminal record.

• DOJ estimates ~7% of people born in 2001 will serve time in fed. or state prison in their lifetimes.

• There has been an effort to remove the barriers to employment for qualified workers with criminal and poor credit records.

8

Criminal Background Checks: Setting the Stage

• 92% of Society of Human Resources Management members (tilted toward larger employers) responding a 2010 survey, reported performing criminal background checks on some or all job candidates. See SHRM, Background Checking: Conducting Criminal Background Checks (Jan. 22, 2010)

Setting the Stage

• Convictions and arrests are very different.

• One-third of felony arrests never lead to conviction. U.S. Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2004 (April 2008).

9

Many Companies Advertise Zero Tolerance.

• “Must have no previous misdemeanors or felonies” Valet Attendant job ad, Corinthian International Parking Services Inc.

• “… Do not apply with any misdemeanors / felonies ...” Sewer Selling Technician job ad, Luskin-Clark Service Company

• “No Exceptions! … No Misdemeanors and/or Felonies of any type ever in background,” Warehouse and Manufacturing job ad, Perimeter Staffing

Why Do Background Checks?

• Employers usually do background checks for the following reasons:– A law requires one, such as school employees,

certain health care workers, public safety, etc.

– Avoid hiring dangerous people.

– Avoid hiring dishonest people.

– Afraid that if they hire someone with a criminal background, they could be held liable.

10

What Can (and Can’t) You Do With the Information?

• Federal and state anti-discrimination laws limit how employers can use arrest and conviction records with respect to employment.

• Some states have specific laws prohibiting the use of arrests, or certain conviction records (e.g., timely and/or only certain crimes.)

ANTI-DISCRIMINATION LAWS

• FEDERAL LAW does not explicitly prohibit asking about criminal backgrounds, but…

• Employers may not discriminate in the use of such information.

• Policies are prohibited if they significantly disadvantage protected classifications AND they are not accurate measures of responsible, reliable or safe employees

11


• 1987 EEOC Guidance: An adverse action as a result of conviction, if has adverse impact on protected class, employer must show it considered 3 factors:– Nature and gravity of the offense(es);

– The time that has passed since conviction; and

– Nature of the job held/sought


• 2012 EEOC Revised Guidance: Recommended as a “best practice …that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”

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• Arbitrary exclusions will tend to have disparate impact

• Must evaluate on individual basis, in light of the requirements necessary for the job

• Focus on the job, not the person.

• Follow the individualized assessment from 1987 EEOC Guidance.


• In addition to Job Related and Consistent with business necessity, use must be consistent across racial/ethnic/gender, etc. groups.

13

Arrest Records

• Records of arrests without convictions do not prove criminal conduct.

• Standing alone, cannot be used.

US: Ban The Box (as of July 1, 2019)

• 35 States with some form of Ban the Box– Either Private AND Public Employers; OR

– Just Public Employers

• 13 Private and Public employers: CA, CO, CT, HI, IL, MA, MN, NM, NJ, OR, RI, VT & WA (and DC)

• 22 Public only: AZ, DE, GA, IN, KA, KY, LA, MD, ME, MI, MO, ND, NE, NV, NY, OH, OK, PA, TN, UT, VA & WI

14

US: Ban The Box

• 150 Cities and Counties– Mix of Private and Public employers

– Approx. 10% apply to both Private and Public

• Wash DC and 31 Cities/Counties extend to private employers who are government contractors

• TOTAL: ¾ of USA Population

Ban the Box Laws

• Laws vary as to when can be asked AND what can be asked

• Most common: No criminal history inquiry ON application

• . . .OR during “initial employment application process”– FROM application TO end of first interview

15

US: Private Employers – 13 States + DC

• EEOC criteria used in varying degrees

• “Direct/adverse” relationship with job

• “Rational relationship” to job

• “directly relates” to job

• No EEOC criteria in many of these states

US: Public Employers – 22 States

• EEOC criteria used in varying degrees

• “Direct/adverse” relationship with job

• Nature of job and nature of offense

• Job related / “Directly relates” to job

• Duties/Nexus b/t conviction & job

• Conviction effects “suitability”

• Majority of States : No EEOC criteria

16

Ban the Box Laws:Common Threads

• Small employers often excluded– Examples: NJ: 15 employees or less

• Type of employees can be excluded:– Hired for domestic service at home.– Independent contractor.– Directors and Trustees.

• Location of employees - contractors


• Who is an “applicant”?

• Any person employer considers when indentifying potential employees for employment.

• Any person who requests to be considered for employment.

• Includes Current Employees (internal applicants)!!!

17


• After initial screening period (application or first interview or even after job offer), restrictions USUALLY lifted– Employers may request criminal background

check AFTER first interview OR (alternatively, depending on specific law) after finalists identified or hiring decision is made

• Some laws do restrict adverse decisions based on nature/severity of crime


• Most Ban the Box laws allow use of any records, except records which have been expunged, or erased through executive pardon.

18


• Proof submittals to rejected candidates:– Most common: Provide copy of criminal record

relied upon (even if not FCRA)

• Others:– Limit on look back period, except heinous crimes

– Written notice to applicant explaining denial

Ban the Box:Common Exceptions

• Does not restrict when you can ask about criminal records for the following types of employment:– positions for which criminal background checks are

required by law, – or where a person with an arrest or conviction for

certain offenses may be barred from the position by law,

– or where a law would restrict the employer from engaging in certain of its business activities based on the criminal records of its employees.

19

Common Threads:Prohibited Advertisements

• Prohibits most employment advertisementswhich state that those with criminal records will not be considered. Same exceptions as with applicants, and:

– Law enforcement

– Homeland Security

– Corrections officers

– Judiciary

– Emergency management

– OR other positions where criminal check required by law

How to Prepare for Ban the Box Laws

• Review all online and printed initial employment applications and forms.– Revise to remove all questions regarding

criminal backgrounds

20

How to Prepare (cont.)

• Determine if you have any positions for which an exception applies.– If you plan on using an exception, document.

• Review your process and decision-making. – Compliant with FCRA?

– Compliant with anti-discrimination laws.


• Educate all involved in the hiring process.– No Interview Questions

– No Google investigations

– No “making a few calls”

• Revise job advertisements/solicitations (all media) (Monster, Craig’s List, etc.)

21


• Consider having a form for employee to fill out and sign AFTER end of first interview (or whenever allowed) to request criminal convictions.– Dates, charges, penalties

– Certification of accuracy and completeness, to best of knowledge.

– Acknowledgement that falsification or material omissions grounds for termination.

When?

• Unless or until employer is advertising or hiring in a jurisdiction with a “ban the box” type statute, the employer can do it at any stage of the application or employment process.

• HOWEVER, anti-discrimination laws caution against unfettered use

22

Credit Background Check:State and Local Laws – Why?

• 2008 financial crisis added millions of people to credit check rolls

• Minority households have greater percentage of poor credit, in part due to predatory lending practices (10% to 20% higher)

• FTC: 5% of consumers have errors on major credit reports; other estimates place it as high as 12%

Credit Background Check:State and Local Laws

• 12 States limit employment credit checks: CA, CO, CT, DE, HI, IL, MD, NV, OR, VT and WA (as of January 2019)

• Numerous States have legislation pending

• Dozens of cities/counties have form of credit check ban or legislation pending

23


• Credit check ban laws have number of exceptions:– Employee handling cash/goods

– Employees with access to financial information

– Management positions

– Law enforcement


• Other Credit check ban laws exceptions:– Gaming industry

– Employee consent

– Access to proprietary or confidential information

– “job related”

• Some laws allow credit checks with “Ban the Credit Box” limits

24


The “Glass Ceiling”: Salary Inquiries

Salary History Inquiry

• Common practice for job applicants to be asked:– What salary are you currently earning? OR

– What salary would you like to earn here? AND

– Can we have your authorization to ask former employer to confirm your employment, including salary history

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• Laws are now being passed, in States and municipalities to limit employers’ ability to ask for salary history

• Theory:– Break gender “glass ceiling”

– End pattern of lesser pay for other minorities

– Even allow reformed ex-prisoners to re-enter workforce


• As of Summer 2019:– 14 Statewide laws

– Dozens of Municipal/local laws

• Combination of all employers, or public sector only

• Varying rules as to how/when can ask, if at all

26


• Latest States to pass salary history inquiry laws:– NJ (Eff’ve 1/1/20)

– AL, IL & ME (Eff’ve Sept. 2019)

– WA (Eff’ve 7/28/19)

• NY is awaiting Governor’s signature


• California– Prohibits inquiry from applicants

– Prohibits relying on salary history to set compensation, unless applicant voluntarily disclosed it

– Requires employer upon request to provide pay scale for job position

27

Salary History Inquiry: Others

• Oregon

• Puerto Rico

• Albany County, NY

• Westchester County, NY

• Pittsburgh, PA

• New Orleans, LA

• San Francisco, CA


• FLIP SIDE:– Michigan and Wisconsin have prohibited

municipalities from adopting salary history ban laws

28


Philadelphia Litigation

• May 2018 – District Court granted injunction, finding prohibition against asking violated First Amendment, but agreed that employers could be barred from use

• Argued earlier this year before Third Circuit

Fair Credit Reporting Act

• Governs the procurement and use of “consumer reports” on individuals with respect to employment

• Administered and enforced by the FTC

• Only applies when “consumer reports” are obtained from “consumer reporting agencies”

29


• Consumer report: any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, character, general reputation, personal characteristics, which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for employment purposes


• Investigative Consumer Report: a consumer report or portion thereof in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom he is acquainted or who may have knowledge concerning any such items of information

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• Consumer Reporting Agency: (“CRA”) any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties


• Examples of information which, when obtained from CRA’s like private background check companies, would be consumer reports include:– Credit Checks

– Criminal Background Checks

– Driver Abstracts

– Reference Checks

– Investigations by private investigators (not on payroll)

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• What is NOT a CRA:– Private individuals

– Educational organizations

– Division of Motor Vehicles (if employer directly obtains)

– State Police (if employer directly obtains)

Fair Credit Reporting Act: Compliance Steps

• (1) Written Notice: Employer must provide employee with written notice that it is going to obtain a consumer report

• (2) Written Authorization: Employer must obtain employee’s written authorization to obtain such a report

• (Note: can be done in same document; but must stand alone)

32


• If obtaining an “investigative consumer report,” employer must also send additional notice – an Investigative Report Disclosure – to an individual, and obtain written authorization

• Notice must be sent within 3 days after the date on which the report was requested


• If employer is going to make adverse decision based, in whole or in part, on the consumer report, employer must:

• (3) Send a copy of:– the report; and

– Summary of Rights Under the FCRA (recently revised; Appendix K to FCRA)

– (Note: must be sent prior to final decision)

33


• (4) Notify individual that the consumer report is basis for adverse action. Notice must include:– Name, address, number of CRA;

– Statement that the CRA did not make the adverse decision;

– Statement setting forth individual’s right to obtain a free disclosure of his file from CRA (within 60 days); and

– Statement that individual has right to dispute directly with the CRA the accuracy of information


• (5) Wait at least 7 days before making final decision – to allow individual an opportunity to challenge consumer report– If no challenge, send final notice – rejection

letter based on information in consumer report; and

– Include another copy of Summary of Rights Under the FCRA

34

Fair Credit Reporting Act: Employer Liability

• Employer liable for actual damages, costs and attorneys’ fees

• Willful violation may result in punitive damages

• Statute of limitations is 2 years; maybe longer if willful

The Interview and Onboarding Process

Medical Inquiries

35

ADA / NJLAD Limitations

• The Americans with Disabilities Act (“ADA”) and counterpart laws in most States govern medical inquiries of job applicants– Under disability protection laws, an

employer’s ability to ask questions relating to a potential employee’s medical condition is limited.

ADA / Disability Laws

• The ability to require medical examinations and to make medical inquiries depends on when the inquiry is made or examination is requested.

36

Pre-offer

• Employers may ask questions regarding the applicant’s qualifications for a particular job.

• Employers may ask about an applicant’s ability to perform specific job functions.

• Asking about Attendance Problems

Prohibited Inquiries: “Disability-Related” Questions

• Questions likely to elicit information about a disability, including direct questions regarding possible disabilities, indirect questions aimed at determining possible disabilities, and asking about accommodation.

• The employer may ask the applicant whether he or she can do the job “with or without reasonable accommodation,” but not whether the employee needs an accommodation to do the job.

37

• Work-Related Disabilities and Workers’ Compensation: the interviewer may not ask about an applicant’s workers’ compensation history or about the details of job-related injuries.

• However, you may and should ask about the employee’s safety record and about the details of any accidents in which the employee was involved, aside from details about any injuries sustained.

Inquiries re Drugs and Alcohol

• Current illegal drug use - An employer may ask applicants about current illegal use of drugs.

• Prior illegal drug use - The interviewer may inquire about prior illegal drug use, but only with questions that are not likely to elicit information about a disability.

38

Inquiries re Drugs and Alcohol

• Drinking habits – May ask questions about use generally, but not if question may elicit information about alcoholism

• Current lawful drug use - The employer may not ask applicants routine questions about the current use of prescribed or over-the-counter drugs, except as they relate to the performance of the job.

• Consider asking about discipline in prior jobs

• The employer may require that all new hires submit to a post-offer pre-employment drug screen and may make employment conditional on its results.

• Drug/Alcohol Testing: Employers should not conduct such testing without a policy providing for same. – Outline the procedure– Consider using DOT approved testing facilities – Those tested should consent to the testing in writing

39


Recreational and Medical

Marijuana Update

Marijuana Update(as of July 1, 2019)

• 11 States legalized recreational and medical marijuana

• 23 States legalized medical marijuana only• Marijuana is STILL a Schedule I illegal drug under

federal Controlled Substances Act– Obama 2013 memo: do not enforce if legal under State

law– Trump administration rescinded Obama memo but no

noticeable enforcement ramp up

40

Marijuana Update

• Each State law varies, sometimes widely as to employment accommodations and standards

• DO NOT have to accommodate on-the-job use, under almost all State laws

• Reasonable accommodation likely required in most medical marijuana states:– NOT required in CA, CO or OH– Court decisions or State laws (e.g. NJ) require reasonable

accommodation

Post-Offer Medical Exams

• An employer may require a medical examination of a potential employee after making an offer and before the individual begins his employment duties, provided all entering employees in the same job category are subjected to such an examination regardless of disability.

• The employer may condition the employment offer upon the results of that medical examination.

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• Need not be job-related and consistent with business necessity; however, if certain criteria are used to retract a job offer made to an employee as a result of the examination, the exclusionary criteria must be job-related and consistent with business necessity.

• Permissible reasons for withdrawing an offer include: a medical history revealing numerous serious injuries to the back of an individual hired to do the type of work which caused those injuries, a worker’s compensation history revealing numerous denied claims which may indicate fraudulent claim submissions, and an examination indicating the need for frequent lengthy absences from work for an individual whose job requires his daily availability for the next three months.

– Keep in mind that all medical information obtained at this stage must be kept confidential. In fact, all medical information obtained about employees must be kept confidential.

42

The Onboarding Process

Job Descriptions

Job Descriptions: Primer

• Job descriptions should be drafted to ensure they reflect only job-related criteria, list essential functions, and distinguish between essential and marginal job functions.

• Description should be a written narrative defining the job in terms of the tasks the employee must perform. The tasks should be laid out in order of priority, with the most important tasks listed first.

• Each task may be accompanied by an assignment of “weight.”

• The task should be fleshed out with performance specifications

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• If the applicant is unable to perform one or more of the essential functions, the employer need not accommodate the applicant. Thus, the applicant need not be hired.

• Further, in cases of termination of an employee unable to perform essential functions of the job, if an employer’s decision is challenged, the job description becomes valuable documentary evidence that can work for or against the employer.


Interviewer Checklist

44


• Familiar with job description

• Trained on legal/illegal questions to ask

• Able to ask if applicant can perform job w/ or w/o reasonable accommodation– Without asking too much medical

information


• Obtain missing information on job application– References

– Explanation for employment gaps

• Trained to avoid representations which are contrary to the employer’s employment-at-will policy

• Develop grading criteria that is uniform for the job position and used with ALL applicants for same position

45


Pay Equity Laws

PAY EQUITY LAWS

• Federal Equal Pay Act toothless

• Federal Paycheck Fairness Act stalled

• Strong state laws adopted in last several years – Massachusetts, Maryland, Illinois, Oregon, California,

Colorado, New Jersey, New York, Washington

– Many not limited to gender

46

PAY EQUITY LAWS – KEY QUESTIONS

• What is “comparable work”?

• Who must be compared? One-on-one???– Example:

• Male, African American, Age 55 – earns $70K/yr

• Female, Caucasian, Age 45 – earns $65K/yr

• Male, African American, Age 35 – earns $62K/yr

• Male, Caucasian, Age 65 – earns $60K/yr

PAY EQUITY LAWS – KEY QUESTIONS

• Different standards for justification of differentials:– Seniority

– Merit

– Objective criteria

– Workplace location

– Education, Training, Experience

• Scope of Coverage – multi-jurisdiction employers

• Remedies – Adjustments and Damages

• Retroactivity and Statute of Limitations

• Anti-Retaliation

47

New Jersey Pay Equity Law

• Perhaps most expansive Equal Pay Law

• “Substantially similar work” – decided by jury

• All employees compared regardless of location

• Burden of Proof FLIPPED – Employer must justify differential

• How do you remedy violation – ONLY WAY IS UP!

• Six year statute of limitations

• Anti-Retaliation provision


• Narrow, specific defenses; not “any other factor”:

1. seniority system (undefined)(May be different from longevity); OR

2. a merit system (undefined; “system”)

3. Five factor test

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(1) Differential based on one or more “legitimate, bona fide factors” other than the protected class, “such as training, education or experience, or the quantity or quality of production;”

• What other factors may be considered? Seniority with company? Location?


(2) “That the factor or factors are not based on, and do not perpetuate, a differential in compensation based on sex or any other characteristic of members of a protected class;”

• Unclear what evidence would be used to disprove “perpetuation” differential in compensation

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(3) “That each of the factors is applied reasonably;”

• This is not clear by what “reasonably” means – but a jury gets to decide if you applied the factor reasonably or not.

• Best approximation of “reasonably” will be did you apply it “fairly.”


(4) “That one or more of the factors account for the entire wage differential;”

• Employer must be able to explain the entire difference.

• Prove entire difference is based on the factors it cites.

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(5) “That the factors are job-related with respect to the position in question and based on a legitimate business necessity.”• You can only use a factor if you can prove that it

relates to the job and is necessary.

– Educational requirements.

– Physical requirements.

– Skill based compensation.

• Jury can consider alternative business practices

Pay Equity Compliance

• Survey applicable laws; consider most restrictive

• Equal Pay analysis – Involve counsel – legal questions and

potential privilege protection

• Job Description/Handbook review

• Arbitration provisions

• Remedy discrepancies

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New Hires: Best Practices

Prompt Onboarding

• Distribute and get acknowledgments for handbooks and critical policies

• Obtain copies of necessary licenses or certificates, pre-start date

• Obtain necessary “immigration” information, as permitted by law

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Prompt Onboarding

• Medical accommodations:– Advise supervisor of any necessary

accommodations

– Determine if accommodation is permanent (not essential to job) or temporary (if essential to job)

– Obtain all necessary medical notes


Probationary Periods

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• Probationary periods are NOT REQUIRED BY LAW

• Only required in union collective bargaining agreement, but employer tool to avoid “just cause” standard

• Probation when not required can lead to inference of an employment contract, so need proper disclaimers


• Probationary periods are useless if not followed

• Leniency during probation can lead to claims of discrimination down the road

• If employee is failing during probation, either (1) terminate or (2) extend probation

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• Employers must assess probationary employee performance – AND document it

• Must assess each probationary employee in uniform manner– Frequency

– Criteria

• Must notify employee of progress (or lack of it) during probation


New Hires: Absenteeism

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• Comply with all local laws granting protected and/or paid leave

• Track all absent days

• DO NOT be lenient, unless required by law


• New employees do not get FMLA rights until (1) work for 12 non-consecutive months; and (2) work 1250 hours in prior year

• DO NOT give them FMLA rights in handbook w/o clear language explaining may not be eligible

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• New employees DO get time off for medical disabilities – NOT to care for sick family members,

unless required by local law

• Time off for disability is a reasonable accommodation required by law under ADA or State law– NO exception for new employees

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