Vermont Bar Association

2020 Mid-Year Meeting

Can I Ask That? Surprising, Recurring,

& Emerging Issues in Recruiting &

Retaining Quality Employees

WEBINAR: June 26, 2020

1:00pm - 2:30pm

Faculty:

Xusana Davis, Esq.

Steve Ellis, Esq.

Beth Rattigan, Esq.

Kerin Stackpole, Esq.

Thank you to our Sponsors and Exhibitors:

LexisNexis CourtCall & Electronic Dictations Systems

Injury & Health Management Solutions, Inc.

LBBlades & Associates ALPS

Technology Consultants Inc.

Pinnacle Financial

American Cancer Society CGI Business Solutions

VERMONT BAR ASSOCIATION JUNE 26, 2020 1

VERMONT BAR ASSOCIATION MIDYEAR MEETING --WEBINAR

LABOR AND EMPLOYMENT LAW SECTION

June 26, 2020

Can I ask that? Surprising, recurring and emerging issues in recruiting and retaining quality employees.

OUR PANEL

VERMONT BAR ASSOCIATION SEPTEMBER 27, 2019 2

• Steve Ellis, Paul Frank + Collins

• Kerin Stackpole, Paul Frank + Collins

• Xusana Davis, State of Vermont, Executive Director of Racial Equity

• Beth Rattigan, Downs Rachlin Martin

Our Program

Basic principles

Vexing problems

How important is education and training?

Technological solutions?

Purposes of anti-discrimination/ harassment/ retaliation laws

Equity in opportunity

Equity in compensation, benefits, terms and conditions

Workers’ rights

Safety

Protected concerted activity

Privacy

Problem 1: Is imperviousness to discrimination/ harassment a job qualification? In-home care provider requires applicant to be

interviewed by bigoted client to assure “compatibility.”

Security company asks applicant for security guard position if she will be able to handle offensive “teasing” by the manufacturer client’s assembly line workers.

Mental Health Specialist claims hostile work environment based on severe and pervasive racial harassment by patients and coworkers.

Francois v. State (Dept. Mental Health) https://hrc.vermont.gov/sites/hrc/files/Francois%20v%20VT%20Department%20of%20Mental%2

0Health%20Investigative%20Report%20%26%20Final%20Determination.pdf

“Certainly, VPCH can be held liable when they fail to adequately address the competing needs and interests of patient services and staff safety. As a result, VPCH has invested a lot of time and resources into developing lengthy trainings and education around the safety of staff and patients who, because of their mental health issues, cause bodily injury and harm. Furthermore, Ms. Francois has never claimed that VPCH should be liable for their patients' racism only that VPCH had a duty to protect Ms. Francois and other African-American staff members from a hostile, offensive and abusive work environment and it failed to take any preventative or corrective action in this regard. Instead, VPCFI had no policies or protocols in place and had never developed or delivered training specific to its staff; staff who work in a unique, complex and highly stressful environment in need of dynamic training. Mr. Mitchell said training wasn't a priority and admitted that perhaps this was a mistake. It was. Ignoring the urgency and necessity of training created a permissive climate for patients to verbally attack African-Americans and put them at risk for bodily harm, with little or no support. The same climate allowed staff to make unfettered and unchecked racially motivated statements. The October 2016 training was uninspiring, failed to validate the African-Americans who felt discrimination, and failed to challenge and supply the necessary tools to move forward at VPCH. Despite it being a mandatory training, some staff never attended.”

Questions: Would the decision in Francois have been different if

the harassment was only by clients, and not co-workers?

Does it matter what kind of clients?

Patients?

Prisoners?

Private customers?

Members of the general public in a service area?

What can/should an employer tell/ask applicants who will likely be required to work with or around clients who are likely to say or do things that are likely to create a hostile work environment?

What warnings/ protections can/ should an applicant or employee be entitled to expect from an employer with hostile/ bigoted clients/ customers?

How important, really, is training and education?

Problem 2: TMI? Employer learns that a qualified applicant has filed claims

against multiple prior employers.

HR does social media investigation of job applicant and finds posts endorsing causes some people might find objectionable:

Defunding the police

MAGA

Planned Parenthood

Employer receives anonymous email with link to video showing employee participating in a march for:

Black Lives Matter

White Power

NORML

VERMONT BAR ASSOCIATION SEPTEMBER 27, 2019 9

Questions: Does it matter? Should it matter? Why? Why not?

What, if any, right/obligation/ability does an employer have to screen out applicants who might become problem employees or may not be a “good fit” with the “company culture?”

What, if any, right/obligation/ability does an employer have to determine accuracy of or explanation for public information regarding an applicant or employee?

Does it matter if the employer is a public entity?

https://www.vnews.com/Windsor-Principal-Folo-34784194

Problem 3: “Character” Questions

Background Elected Official (“Elected”) is male, is wearing a bow tie with

religious symbols on it, and is observably non-white.

Job Applicant (“Applicant”) is female, is a recent law school grad who has been seeking employment for approximately 10 months, and is observably non-white and often assumed to be a member of the same ethnic group of which Elected is a member.

Job applicant seeks employment with Elected’s office after being personally recommended to the office by a trusted mutual contact. Applicant arrives at Elected’s district office, and is walked next door to a casual, counter‐service neighborhood restaurant by elected, who indicates he will take lunch break while conducting the interview at the restaurant. Elected asks applicant Where she lives Her age Whether she has children or plans to Her ethnic background and parents’ nationalities Her marital status Whether she planned to marry her long‐term partner The ethnicity of her partner Her political party/affiliation Her religion Whether she has had a COVID-19 antibody test Whether she has been vaccinated for flu or measles

Questions Which questions were okay to ask and why?

How could Applicant have responded? How should Applicant have responded?

What was Elected likely trying to ascertain through these questions, and how could Elected have gained that information differently?

Should Elected have tried to gain that information at all?

If Applicant gets the job, what advice would you give her moving forward?

Do any of your answers change if Applicant knew that the questions were impermissible at the time of the interview?

Problem 4: Job PostingsBackground

[State] is a U.S. state that has a human rights enforcement agency and has expanded employment discrimination protections to include persons with criminal history (the year is 2011, so these laws are not as common as they are today)

Complainant is a resident of [State] and is a registered sex offender due to a criminal conviction involving a minor

Case Manager is an employee of a [State]’s human rights enforcement agency. Case Manager’s job is to investigate discrimination claims based on federal and state law, and interacts closely with Complainants and Respondents. Case manager is not an attorney.

The Set-upComplainant is a resident of [State] and files dozens of discrimination claims with [State]’s human rights enforcement agency each year, earning as much as $50,000 per year from claim settlements. Complainant does this by searching for online job postings and seeking postings that state that applicants with criminal history will not be considered. Complainant then files suit with the human rights enforcement agency, stating that the posting in question created a chilling effect preventing Complainant from applying for the position. Complainant never intends to apply for or perform these jobs. The Respondent employers are usually national companies that use the same job postings in all states, without realizing that [State] bars the criminal history clause.

Case Manager, frustrated with what she views as Complainant’s abuse of the system, begins advising Respondents to offer Complainant the job to render Complainant’s case moot and thus end the complaint.

Complainant is never represented by counsel, but does have training as a paralegal. Complainant also encourages others with criminal history to bring claims of this nature, and consequently has updated his resume to list a position as “Recruiter” employed by the human rights enforcement agency.

Questions How could the national employers have avoided these

complaints?

Is it enough to offer an aggrieved jobseeker a position to avoid accusation of discrimination?

If Complainant sought your advice on this strategy, what would you advise?

How would you advise the employers to respond to the complaint?

Is Complainant’s history of filing other complaints relevant?

Why Does It Matter Where I am From??Ron and David are interviewing applicants for a sales position for a farm equipment company. They want someone outgoing, who can build business.

Jacinta Fellows applies for the job and comes for an interview. Her skin is observably darker than David’s. He asks her where she is from. She says “Vermont.”

He says “No, really, where are you from?” She repeats that she is from Vermont. He follows up with “But originally, where are you from?” Jacinta says “I was born in Burlington.”

Ron is uncomfortable with the exchange, and says “Well, that’s not REALLY Vermont….” and laughs.

Why Does It Matter? David goes on to say that their customer base is made up of

“mostly old, crusty Vermonters.” He asks “Do you think you can get along with this kind of a crowd?”

She explains her past experience in sales and how she has expanded sales for other organizations for which she has worked. She also explains that she is bilingual and has farmers in her family.

David responds by saying: “Well, I think knowing English is important for our crowd….but it’s good that you speak other languages. Did your people farm here in Vermont or some other country?”

David really wants the right candidate, to be able to get along with his client base. Any issues with his interview style or questions?

Getting Right to the PointJune is a manager at a retail store. The position she is hiring for involves customer interaction and stocking shelves and other physical labor. She needs reliable help and says it is “like looking for a unicorn…just not possible to find…everyone has excuses….”

Her are her recent typical questions of applicants:

Are there any reasons you are unable to do this job?

Do you have little kids?

Does your husband/wife help with childcare, or is that all on you?

During all this COVID stuff, did you have symptoms at all? Or were you ever quarantined?

Were you laid off because of COVID or did you opt to take unemployment so you could get that extra $600 per week?

Have you ever quit a job because you thought it was too hard?

WHAT DO YOU THINK OF HER INTERVIEW QUESTIONS?

Technology – A Way to Avoid Bias??

Big Law Hiring Partner in Boston wanted to avoid inadvertent bias in the hiring process and adapted a artificial intelligence tool to screen and collect resumes, and recommend top 5 to interview.

Looked for those with similar backgrounds

Listed Ivy League and top tier law schools

GPA and law review

Screened for competitive athletes on the thought that such training fostered work ethic and discipline

Looked for individuals in Northeast

Any issues?

AMAZON AI Recruitment andFacebook Business Tools

Amazon’s AI screening tool was not gender neutral

Existing pool of software engineers were male and it sought male candidates

Penalized resumes that included the word “women” as in all-women colleges or “women’s rugby team captain”

Facebook’s Business Tool included “Lookalike Audiences” feature to allow employers to choose users demographically similar to existing workers; resulted in racial bias

Class action lawsuit filed; settled in 2019

Age is another common issue in AI recruitment

Thank you!

Questions? Steve Ellis; 802-658-2311

sellis@pfclaw.com

Kerin Stackpole; 802-658-2311

kstackpole@pfclaw.com

Beth Rattigan; 603-448-2211

erattigan@drm.com

Xusana Davis

Xusana.Davis@vermont.gov

Vermont Fair Employment Practices Act

https://legislature.vermont.gov/statutes/section/21/005/00495

Federal: Title VII of the Civil Rights Act of 1964

https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964

Federal: ADA

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwiF-b2exePpAhWET98KHYF3BZkQFjAQegQIDhAB&url=https%3A%2F%2Fwww.dol.gov%2Fgeneral%2Ftopic%2Fdisability%2Fada&usg=AOvVaw03kra0jPdcEfZa9t5grhkF

Federal: ADEA

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjch4faxePpAhV2B50JHXLTBCAQFjACegQIARAB&url=https%3A%2F%2Fwww.eeoc.gov%2Fstatutes%2Fage-discrimination-employment-act-1967&usg=AOvVaw1IUM0eVfydOXm-n9T7ldUt

Equal opportunity

Recent additions to FEPA § 495. Unlawful employment practice

(a) It shall be unlawful employment practice, except where a bona fide occupational qualification requires persons of a particular race, color, religion, national origin, sex, sexual orientation, gender identity, ancestry, place of birth, age, crime victim status, or physical or mental condition:

(1) For any employer, employment agency, or labor organization to discriminate against any individual because of race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, or age or against a qualified individual with a disability;

https://legislature.vermont.gov/statutes/section/21/005/00495

2016: § 495j: Criminal History https://legislature.vermont.gov/statutes/section/21/005/00495j

2018: Added “crime victim” defined as a person who has obtained a relief from abuse order, order against stalking or sexual assault, order against abuse of a vulnerable adult, or a victim of a crime identified in affidavit by prosecuting attorney, including family members who are not identified as the defendant.

H.492: Would add “housing status” defined as “the status of being homeless, being a homeless individual, or being a homeless person, as defined in 42 U.S.C. § 11302.

Equal PayNursing Mothers

https://legislature.vermont.gov/statutes/section/21/005/00305

Salary History

https://legislature.vermont.gov/statutes/section/21/005/00495m

Credit Historyhttps://legislature.vermont.gov/statutes/section/21/005/00495i

Pregnancyhttps://legislature.vermont.gov/statutes/section/21/005/00495k

Privacy

Medical Examinations

https://legislature.vermont.gov/statutes/section/21/005/00301

Polygraphs

https://legislature.vermont.gov/statutes/section/21/005/00494a

https://legislature.vermont.gov/statutes/section/21/005/00494b

Social Media

https://legislature.vermont.gov/statutes/section/21/005/00495l

Workers’ rights

NLRA Section 7 rights: concerted protected activity

OSHA/VOSHA: workplace safety

Workers’ comp

Unemployment

Privacy

On duty vs. off duty

Free speech and assembly

COVID-19COVID-19

https://www.eeoc.gov/coronavirus

https://accd.vermont.gov/news/update-new-work-safe-additions-stay-home-stay-safe-order

https://www.nytimes.com/2020/05/19/health/coronavirus-aclu-fever.html?referringSource=articleShare