Best Practices for Hiring Exceptional Management

Staff

These materials have been prepared by Poyner Spruill LLP for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.

Use Detailed Job Descriptions

• Define all essential functions• Include key responsibilities and tasks• Include “and other duties as assigned”• List specific knowledge, skills, and abilities• List “minimum” required education and

experience needed• List physical requirements for the job

Interviewing

Interviewing

• Interviews, and all other employee selection procedures, are governed by state and federal anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964.

• Avoid questions that tend to reveal protected class characteristics such as race, national origin, age, and sex, or that indicate a preference for applicants depending on these characteristics.

Many Laws Prohibit Discrimination

• Title VII of the Civil Rights Act• Age Discrimination in Employment• Americans with Disabilities Act• Family Medical Leave Act• Fair Labor Standards Act• REDA

Federal Law Impacts Interviews and Hiring

• Race• Age• Disability

– Actual– Perceived– By Association

• Ethnicity– Color– National Origin

Age• Gender• Religion• Sexual Orientation

(probably)

Interviewing

• Use interviews to get to know the applicant.– easy to talk with? attitude? smile?

• Ask challenging open ended questions:– skills necessary to do the job– strengths and weaknesses– previous accomplishments– relationships with prior employers and employees– communication style – “gaps” in employment history

• Conduct skills tests if necessary.

Interviewing Do’s and Don’ts

• You can reduce or eliminate problems with employees through careful hiring practices.

• Use interviews, reference checks, and applications to find employees with the characteristics your company needs for success.

• Thorough interviews reveal:– past discipline problems– exaggerated skill claims – difficult personalities

Things You Can and Cannot Ask• Do not ask an applicant’s age, date of birth, or any

questions showing a preference for any age group.– You may ask an applicant if he/she is over eighteen.

• Do not ask about an applicant’s place of birth or family history. – You may ask if an applicant is authorized to work in the

United States or an applicant’s ability to read or write English or a foreign language if the job requires such.

Things You Can and Cannot Ask• Do not ask if an applicant is married, single, divorced,

separated or engaged.

• Do not ask about an applicant’s family size, children’s ages, family plans, child care arrangements, or a spouse’s employment or salary.– You may ask about an applicant’s ability to travel if

required by the job. – You may ask about an applicant’s ability to meet work

schedule requirements.

Things You Can and Cannot Ask• Do not ask about an applicant’s education beyond what

is related to the job requirements.– You may ask about an applicant’s training, qualifications, and

work experience related to the duties and requirements of the job.

• Do not ask about an applicant’s religion or what religious holidays he/she observes.

• Do not ask if an applicant’s religion would prohibit weekend or holiday work. – You may ask about an applicant’s anticipated absences. – You may ask if the applicant is available for weekend and

holiday work provided it is a job requirement.

Things You Can and Cannot Ask• Do not ask about an applicant’s financial condition, loan

obligations, credit rating, or possible garnishments.• Do not ask if the applicant owns or rents his/her

residence, or how long the applicant has lived at a residence.

• Do not ask if an applicant owns a car unless use of a car is a job requirement.

• Do not ask if an applicant has ever been arrested, but you can ask if an applicant has ever been convicted.

Things You Can and Cannot Ask

• You may state attendance requirements and ask if the applicant can meet them.

• You may ask the applicant about prior work attendance and reject the applicant on the basis of a poor attendance record (but do not ask if the poor attendance record was due to an illness or injury).

Disability Don'ts

• Do not ask about the applicant's health.• Do not ask if the applicant has ever been

hospitalized, received counseling, or seen a psychiatrist.

• Do not ask if the applicant has a drug or alcohol problem.

• Do not ask about height, weight, physical or mental condition, or medical history.

• Do not ask about any physical characteristics such as scars, burns, or missing limbs.

Disability Don’ts

• Do not ask if the applicant has a disability or medical condition that will prevent the person from performing the job. – You may ask if the person knows of any

reason that he/she cannot perform the essential functions of the job.

– You may describe or demonstrate a job function and ask all applicants if they can perform the functions with or without reasonable accommodation.

Resist Temptation!

• Do not get too comfortable. Resist the temptation to follow-up with questions after the interviewee has “opened the door.”

• If an applicant volunteers information about a subject that should be off-limits, be polite, but do not use it as an excuse to find out more information. –Drop your pen and stop taking notes.

Criminal Background Checks

EEOC Enforcement Guidance onUse of Criminal Records• Employers should NOT rely on arrest records as a

basis for screening applicants. • Employer use of criminal conviction records to

screen applicants may have “disparate impact” based on race and national origin. Disparate treatment may also occur.

Disparate Impact Discrimination

• To meet the “job-related and consistent with business necessity” standard, employers should:– Develop a targeted screen considering:

• nature of the crime• time elapsed• nature of the job

– Assess each applicant individually.

Individualized Assessment• Notice: Employer informs the individual that he/she may

be excluded from the job because of his/her past criminal conduct.

• Opportunity to Explain: Applicant gets an opportunity to explain why he/she should not be excluded despite his/her past criminal conduct, and/or provides additional information about the criminal conduct.

• Consider Mitigating Information: Employer considers whether the individual’s explanation, or additional information, shows he/she should not be excluded.

Inquiries into Credit History

Use of Credit History Under Scrutiny• According to the EEOC:

– Inquiry into an applicant's current or past assets, liabilities, or credit rating, including bankruptcy or garnishment, refusal or cancellation of bonding, car ownership, rental or ownership of a house, length of residence at an address, charge accounts, furniture ownership, or bank accounts generally should be avoided because they tend to impact more adversely on minorities and females. Exceptions exist if the employer can show that such information is essential to the particular job in question.

• It will be difficult to establish business necessity, as there is little evidence that credit is a factor in predicting job performance.

Use of Credit History Under Scrutiny

• Ten states have adopted statutes banning or limiting use of credit checks in hiring.

• Several other states have bills pending.• Most of the states with statutes have some exceptions

allowing credit checks for managers with access to funds or other positions involving the handling of money.

• Federal and state FCRA laws are implicated when credit checks are procured.

• A requirement of creditworthiness cannot be justified for most jobs.

• BOTTOM LINE: Avoid performing credit checks on applicants.

Pre-employment Examinations

Pre-employment Examinations • Ensure that employment tests and other selection

procedures are properly validated for the positions and purposes for which they are used.

• The test or selection procedure must be job-related, and its results appropriate for the employer’s purpose.

• If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure.

• Stay abreast of changes in job requirements and update the test specifications or selection procedures accordingly.

Act Now!

• Develop a narrowly-tailored, multi-faceted background check policy for criminal background and credit checks.

• Eliminate automatic exclusions based on criminal record.

• Adhere to EEOC’s guidance on criminal background checks.

• Limit or eliminate credit checks on applicants.• CHECK STATE LAWS!

Use of Social Media

How Companies Use Social Media

• Companies use social media to promote their business and attract applicants.

• Companies use social media to gather information or scout for prospective employees.

• Companies use social media to screen applicants.• Companies use social media to stay connected to

their employees by engaging in social media activities that interest them.

What You Find on Applicant Social Media Profiles• Education history• Work history• Career interests• Who the applicant knows / is connected to • Family information • Hobbies• Favorite music and movies• Political views• Religious views

Guess what else you might find. . . .

. . .TMI• Drug and alcohol use• Arrest or criminal history• Sexual orientation or gender identity• Disabilities• Mental health issues• Whistleblower activity• Prior lawsuits or charges

Some Important Considerations

• Is it lawful to use this information?–Protected characteristics/activity–Lawful off-duty conduct

• Am I complying with FCRA?• Is this information accurate or

otherwise worthy of consideration?

How Can I Minimize Risk?• Adopt a clear policy (when, why, and what

information will be deemed relevant).• Be consistent (what’s good for the goose is

good for the gander).• Consider only reviewing social media after an

applicant has been selected for an interview or received a conditional offer of employment.

Never Request Log-in Credentials

• Several states have passed laws making it unlawful for any employer to ask any prospective employee to provide any username, password, or other related account information in order to gain access to a social networking website where that prospective employee maintains an account or profile.

E-Verify

• As of July 1, 2013, all employers in North Carolina with 25 or more employees must enroll in E-Verify. This only counts employees in North Carolina for employers with multi-state locations.

Thank you!