4b. hr: before the welcome letter: hiring legal lessons

4B. HR: Before the Welcome Letter: Hiring Legal Lessons

CAPLAW 2015 National Training Conference

Thursday, June 11, 2015 4 pm – 5:30 pm

Portland Marriott Downtown Waterfront

Handouts:

PowerPoint Slides

Tillman Coffey, Esq. Partner Fisher & Phillips LLP [email protected] 404.240.4222

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Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

Before the Welcome Letter:Hiring Legal Lessons

June 2015

Tillman Y. CoffeyPhone: (404) 240-4222

Email: [email protected]

HIRING: WHERE IT ALL BEGINS

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Jack Welch, former CEO of General Electric, said:

“Control your own destiny or someone else will.”


Bob Dylan, famous songwriter and singer, sang:

“You can’t win with a losing hand.”

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Bad hiring decisions are a primary cause of many employee problems and legal challenges.


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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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


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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


• 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


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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


• 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


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.


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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:


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.


• Non-discriminatory hiring practices

• Negligent hiring issues• After-acquired

evidence defense• Authorizations for

background checks• Defensive agreements

Every candidate must complete a job application


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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:


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


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Every manager involved in the hiring process should study the application before interviewing the applicant or making a job offer.


Every manager involved in the hiring process should look for lawful reasons to hire and not hire each applicant.


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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:


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)


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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?)


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.


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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


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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


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


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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?


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?


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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?


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?


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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!!!!!!!


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


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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.



• 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?



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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”


Topics to Avoid

What do you tell an applicant at the end of the interview?


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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


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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


• 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


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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


Then ask yourself:

Does this person’s criminal record render him or her unsuitable for this position?


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Credit Checks• Same FCRA

requirements

• Disparate impact concerns even greater

• Job correlation is critical


Drug Tests• Pre-employment testing

is permitted

• Random and periodic testing is prohibited in some states

• Reasonable suspicion testing generally is permitted


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Reference Checks• Do them

• Application should authorize

• Document efforts and results

• Negligent hiring standard generally-“knew or should have known.”


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


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Race

Marital Status

ReligionPolitical Views


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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

Atlanta · Charlotte · Chicago · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas

Louisville · New Jersey · New Orleans · Orlando · Philadelphia · Portland ME · Portland OR · San Diego · San Francisco · Tampa

Presented by:

Tillman Y. Coffey, Esq.Fisher & Phillips LLP

Phone: (404) 240-4222Email: [email protected]

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

4b. hr: before the welcome letter: hiring legal lessons

Documents