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Thursday, April 2, 2015 9:00 a.m.–4:30 p.m.

6.5 General CLE credits

Job Applicant Screening: How to Assess Applicants Effectively and Lawfully

Job Applicant Screening: How to Assess Applicants Effectively and Lawfully ii

JOB APPLICANT SCREENING: HOW TO ASSESS APPLICANTS EFFECTIVELY AND LAWFULLY

The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials.

Copyright © 2015

OREGON STATE BAR16037 SW Upper Boones Ferry Road

P.O. Box 231935Tigard, OR 97281-1935

Job Applicant Screening: How to Assess Applicants Effectively and Lawfully iii

TABLE OF CONTENTS

Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Faculty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

1. A State and Federal Overview of Laws and Enforcement—Presentation Slides . . . . . . . 1–i— Katelyn Oldham, Tedesco Law Group, Portland, Oregon

2. Legal Hiring Practices: Compliance with State and Federal Employment Laws . . . . . . . 2–i— Dan Grinfas, Buchanan Angeli Altschul & Sullivan LLP, Portland, Oregon

3. The Applicant Pool: Sink or Swim—Presentation Slides . . . . . . . . . . . . . . . . . . . . 3–i— Clarence Belnavis, Fisher & Phillips LLP, Portland, Oregon

4. Employer Testing: Minimizing Risk, Maximizing Utility—Presentation Slides. . . . . . . 4–i— Tyler Volm, Barran Liebman LLP, Portland, Oregon

5. Medical Inquiries and Examinations of Job Applicants . . . . . . . . . . . . . . . . . . . . . 5–i— Leslie Bottomly, Ater Wynne LLP, Portland, Oregon

6. Background Checks: Applicant Checks and Employer Best Practices—Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–i— Emily Shults, Bullard Smith Jernstedt Wilson, Portland, Oregon

7. Social Media and the Internet: Tools or Traps to Screen Job Applicants—Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7–i— Joy Ellis, Garvey Schubert Barer, Portland, Oregon

Job Applicant Screening: How to Assess Applicants Effectively and Lawfully iv

Job Applicant Screening: How to Assess Applicants Effectively and Lawfully v

SCHEDULE

8:00 Registration

9:00 A State and Federal Overview of Laws and EnforcementKatelyn Oldham, Tedesco Law Group, Portland

9:30 Tools to Defend the Decision to Hire (or Not): The Job Application, Interview, and Reference ChecksCourtney Angeli, Buchanan Angeli Altschul & Sullivan LLP, Portland

10:30 Break

10:45 The Applicant Pool: Sink or SwimClarence Belnavis, Fisher & Phillips LLP, Portland

11:15 Employer Testing: Minimize the Risk, Maximize the UtilityTyler Volm, Barran Liebman LLP, Portland

Noon Lunch

1:00 Medical Inquiries: Hot Button Dos and Don’tsLeslie Bottomly, Ater Wynne LLP, Portland

2:00 Background Checks: Applicant Checks and Employer Best PracticesEmily Shults, Bullard Smith Jernstedt Wilson, Portland

2:30 Break

2:45 Social Media and the Internet: Tools or Traps to Screen Job ApplicantsJoy Ellis, Garvey Schubert Barer, Portland

3:45 The Real World: Case StudiesNancy Cooper, Garvey Schubert Barer, PortlandJoy Ellis, Garvey Schubert Barer, PortlandTyler Volm, Barran Liebman LLP, Portland

4:30 Adjourn

Job Applicant Screening: How to Assess Applicants Effectively and Lawfully vi

Job Applicant Screening: How to Assess Applicants Effectively and Lawfully vii

FACULTY

Courtney Angeli, Buchanan Angeli Altschul & Sullivan LLP, Portland. Ms. Angeli has extensive experience litigating employment cases for both employers and individuals and providing employment law counseling and training to employers. She is a past president of the Federal Bar Association Oregon Chapter and a member of the Owen M. Panner American Inn of Court. She is a regular speaker and writer on employment law issues and has made numerous joint presentations with federal judges for the Federal Bar Association. She holds a Senior Professional in Human Resources (SPHR) certification from the Human Resources Certification Institute. Ms. Angeli is admitted to the state bars of Oregon and Washington and is an inactive Alaska bar member.

Clarence Belnavis, Fisher & Phillips LLP, Portland. Mr. Belnavis has substantial experience handling various types of employment litigation, including disability, racial, and gender discrimination, retaliation, sexual harassment, and wrongful discharge. He also represents employers in wage and hour claims, employment class actions, and traditional labor matters. Mr. Belnavis is a past president of the National Bar Association Oregon Chapter, past president of the Association of Oregon Black Lawyers, and a member of the Owen M. Panner American Inn of Court. He speaks regularly on employment law matters before both lawyers and employers. Mr. Belnavis was honored as a 2011 Convocation on Equality Champion in recognition of the diversity work that he has been engaged in during his career.

Leslie Bottomly, Ater Wynne LLP, Portland. Ms. Bottomly’s practice focuses on general business law with a depth of knowledge in employment law. She advises her clients on business risks, contracts, employment law, insurance coverage, and general legal issues facing businesses and nonprofits. Ms. Bottomly regularly acts as an arbitrator, deciding cases sent to mandatory arbitration in the Multnomah County courts. She has served in many leadership positions within Ater Wynne. She serves on the Oregon State Bar Health Law Section Executive Committee.

Nancy Cooper, Garvey Schubert Barer, Portland. Ms. Cooper practices in the area of labor and employment law, providing public and private sector and health care industry employers with counsel that includes crafting and negotiating executive compensation packages, contracts, and noncompetition and confidentiality agreements, as well as guidance on dealing with personnel management issues. She is a member of Oregon Women Lawyers and the state chair of the Oregon State Bar Disciplinary Board. Ms. Cooper is a frequent lecturer and author for many industry organizations and trade publications.

Joy Ellis, Garvey Schubert Barer, Portland. Ms. Ellis practices in the areas of commercial litigation, employment litigation, and employment-related advice. She represents clients in federal and state court and also defends claims before the Oregon Bureau of Labor and Industries, the Equal Employment Opportunity Commission, the Washington Human Rights Commission, and other agencies. She has also represented clients in dozens of arbitrations and mediations. Ms. Ellis is a member of the Multnomah Bar Association Labor and Employment Law Section and Litigation Section. She is a frequent speaker in various areas of employment law. She also conducts on-site training on workplace harassment and discrimination, leave laws, wage and hour issues, and discipline and documentation.

Katelyn Oldham, Tedesco Law Group, Portland. Prior to joining Tedesco Law Group in 2013, Ms. Oldham was in private practice representing clients in employment and civil rights matters in state and federal court and administrative proceedings. She also has experience representing health care professionals and teachers before professional licensing boards.

Emily Shults, Bullard Smith Jernstedt Wilson, Portland. Ms. Shults specializes in litigation defense, employee management, employee training, and preventive law/risk management. She is a regular speaker and author on employment law topics.

Job Applicant Screening: How to Assess Applicants Effectively and Lawfully viii

Tyler Volm, Barran Liebman LLP, Portland. Mr. Volm’s practice focuses on employment litigation and advice for employers in a wide range of industries in state and federal court. He is a director of the Multnomah Bar Association Young Lawyers Section, a member of the American Bar Association Young Lawyers Division, a member of the Northwest EEO/Affirmative Action Association Board of Directors, a member of the Oregon State Bar Business Law Section Executive Committee, and a volunteer attorney with the Lewis & Clark Small Business Legal Clinic. He is licensed to practice in Oregon and Washington. Mr. Volm has authored numerous articles and is a regular presenter on employment law topics.

FACULTY (Continued)

Chapter 1

A State and Federal Overview of Laws and Enforcement—Presentation Slides

Katelyn Oldham

Tedesco Law GroupPortland, Oregon

Chapter 1—A State and Federal Overview of Laws and Enforcement—Presentation Slides

Job Applicant Screening: How to Assess Applicants Effectively and Lawfully 1–ii


Job Applicant Screening: How to Assess Applicants Effectively and Lawfully 1–1

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JOB APPLICANT SCREENING

A State and Federal Overview of Laws and Enforcement

Checklist

1. Determine the Necessary Qualifications – Ensure the qualifications are nondiscriminatory

2. External Advertising vs. Internal Posting or Promotion – Ensure compliance with any company policies and/or

collective bargaining agreement regarding internal posting, seniority

3. Interviews, Testing, Background Checks– Ensure compliance with ADAAA, Title VII, OR State Law

4. Post-Offer Pre-Employment Screening– Ensure compliance with ADAAA



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Federal Law

1. Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq.

2. Age Discrimination in Employment Act (1967), 29 U.S.C. § 626(e)

3. Title I of the Americans with Disabilities Act (1990) & Americans with Disabilities Act Amendments Act (2008), 42 U.S.C. 12111, et seq.

Title VII

• 42 U.S.C. § 2000e, et seq.• Title VII prohibits employment discrimination

based on: – Race – Color– Religion– Sex (gender) and pregnancy (via the Pregnancy

Discrimination Act) – National Origin



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Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626(e)

• Prohibits discrimination against employees who are 40 years old or older

Americans with Disabilities Act (ADA) Title I

Prohibits discrimination on the basis of disability and ensures greater access to employment by requiring employers to provide reasonable accommodations to qualified applicants and employees.• The EEOC and federal gov’ have some great resources

– www.ada.gov– http://www.eeoc.gov/laws/types/disability.cfm

• The Job Accommodation Network (JAN) also has great resources (JAN partners with the US Dept. of Labor and provides free consultations and advice for employers and employees)– www.askjan.org



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Americans with Disabilities Act Amendments Act (ADAAA)

In enacting the ADAAA, Congress made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute.• For example, mitigating measures (with the exception

of eyeglasses and contact lenses) are not to be taken into account when determining whether an individual is substantially limited

• This ensures persons are covered who have diabetes, cancer and other conditions that can either be controlled with medication, or may be “temporary” in nature.

State Law

1. Chapter 659A of the Oregon Revised Statutes– Mirror Image of Title VII– PLUS prohibits discrimination on basis of sexual

orientation, marital status and age (any age)– Mirror Image of ADA – Veteran’s Preference Act – Employee Social Media Account Privacy (ORS

659A.330)– Discrimination based on information in credit history

prohibited, with a few exceptions (ORS 659A.320)



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Veteran’s Preference Act (Chapter ORS 408)

• ORS 408.230 provides that public employer’s give preference points to veteran’s who are applying for civil service positions (e.g. competitive testing process, often police, fire)

• A public employer shall grant a preference to a veteran or disabled veteran who applies for a vacant civil service position or seeks promotion to a civil service position with a higher maximum salary rate and who:– Successfully completes an initial application screening or an

application examination for the position; or– Successfully completes a civil service test the employer

administers to establish eligibility for the position; and– Meets the minimum qualifications and any special qualifications

for the position

ORS 659A.330 (2014)Employee Social Media Acct. Privacy

• Makes it an unlawful employment practice to:– Compel an employee or applicant to disclose his/her

password, or to provide access to the employee’s social media pages

– Compel an employee or applicant to link to employer or employer-representative, enabling access to employee’s social media pages

• Not an unlawful employment practice to: – View any publicly available information on the internet

about employee, including their social media– Conduct investigation if receive a report from another

employee or party about concerning postings on social media, see esp. 659A.330(4)(b)



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Discrimination based on information in credit history prohibited (ORS 659A.320)

• Makes it an unlawful employment practice to discriminate (including in hiring) because of credit history.

Exceptions: 1. Employers that are federally insured banks or credit unions2. Employers that are required by state or federal law to use individual

credit history for employment purposes3. Persons who are or will be employed as public safety officers, including

police officers, liquor control commission employees, other employees who are charged with enforcing criminal laws or ordinances, including airport security, or

4. Use of information in the credit history of an applicant or employee because the information is substantially job-related and the employer’s reasons for the use of such information are disclosed to the employee or prospective employee in writing.

Determine Necessary Qualifications

• Ensure the qualifications are nondiscriminatory• Ensure that the qualifications are necessary for the

job and would not have a tendency to weed out or discourage applicants from applying solely because of their race, gender, religion, national origin or because they have a disability

• However, if there are physical requirements to the position that are a bona fide occupational qualification (e.g. necessary), include those requirements in the position description and job announcement.



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External Advertising vs. Internal Posting or Promotion

• Ensure compliance with any company policies– Review your company’s policies to ensure that your job

posting/announcement complies with requirements, if any• Ensure compliance with any collective bargaining

agreement, if applicable – Internal posting may be required before external advertisement– Seniority may be a “plus” factor in the applicant screening

• Other considerations– Ensure that no employee is being overlooked for promotion

internally; this could set you up for a discrimination or retaliation claim if there is a great candidate who should be considered

Interviews and Testing• In General

• The Golden Rule Applies. Treat the applicant as you would want to be treated. Be courteous, respectful, friendly, professional. Have someone you trust to be honest with you, who is not of your race/gender/religious background look at your interview questions. Stick to work-related topics.

• Ensure compliance with ADAAA• Provide a neutral statement regarding applicants who need an

accommodations during interview or testing • Do not directly inquire about disability, unless applicant requests

accommodation, or applicant has an obvious disability and you inquire about whether an accommodation is needed to perform the job

• Title VII• No stupid interview questions regarding protected class status issues (e.g.

“I hope you aren’t pregnant”; “why do you wear a hijab” (head covering)) • Oregon State Law

• Apply Veteran Preference Points, if applicable (civil service position/public employment)



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Background Checks

• Do not compel social media password disclosure• Do not perform a credit check, unless one of the

exceptions applies • Okay to review applicant’s publicly available

information on the internet/social media/twitter and so forth.

• Call their references!

Post-Offer Pre-Employment Screening

• After a job is offered to an applicant, the law (ADA) allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.

• Such screening occurs in many physically demanding professions, such as nursing, firefighter, police officer.

• Any information elicited must be kept strictly confidential.

• EEOC provides very helpful information on what is appropriate and legally acceptable

Chapter 2

Legal Hiring Practices: Compliance with State and Federal Employment Laws

dan Grinfas

Buchanan Angeli Altschul & Sullivan LLPPortland, Oregon

Contents

Legal Hiring Policies and Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1Employment at Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1Exceptions to the Concept of Employment at Will . . . . . . . . . . . . . . . . . . . . . . . . . 2–1

EEO Protected Classes Under Federal and State Civil Rights Laws . . . . . . . . . . . . . . . . . . . 2–2Recruiting Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–3

Job Analyses and Position Descriptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–4Step One: Conduct the Job Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–4Step Two: Identify Essential Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–4

Sample Job Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–5

Hiring Interviews—Dos and Don’ts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–6Examples of Questions You Should Not Ask . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–7Examples of Questions You Can Ask . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–7

Restrictions Under the Americans with Disabilities Act: Medical Examinations and Inquiries. . . . 2–8(1) Pre-Employment Inquiries/Pre-Offer Examinations . . . . . . . . . . . . . . . . . . . 2–8(2) Post-Offer Examinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–8(3) Examinations of Current Employees: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–8Recordkeeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–9Illegal Drug Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–9

Exercises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–10

Background Checks and the Fair Credit Reporting Act . . . . . . . . . . . . . . . . . . . . . . . . . 2–11The Fair Credit Reporting Act (FCRA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–11

Reference Checking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–12Examples of Questions You Can Ask . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–12Some Problematic Reference Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–12

Guidelines for Communicating References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–13ORS 30.178, Actions Against Former Employer for Disclosure of Information . . . . . . . . 2–14

Completing the I-9 Form (Immigration Reform and Control Act of 1986). . . . . . . . . . . . . . . 2–15

New-Hire Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–16Oregon’s Employer Reporting Program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–16

Chapter 2—Legal Hiring Practices: Compliance with State and Federal Employment Laws




LEGAL HIRING POLICIES AND PRACTICES

Employment at Will The general rule regarding the employer-employee relationship allows the termination of the relationship by either party, at any time, without notice and without cause.

Most employers choose to reserve the right to employ at will with specific language in personnel policies.

Example: "This policy manual is not to be construed as a contract. We reserve the right to employ at will. This means that employment can be terminated, with or without cause, and with or without notice, at any time, at the option of the company or at the option of the employee."

Exceptions to the Concept of Employment at Will

• Contracts – written or verbal

• Civil rights and anti-discrimination laws

• Public Policy

• Torts

POTENTIAL PROBLEMS WITH THIS POLICY?

INTRODUCTORY PERIOD

Newly hired employees must serve a 90-day probationary period. During this period, the employer may discharge the employee for any reason.

Employees will attain permanent status only after successful completion of the probationary period.



EEO PROTECTED CLASSES UNDER FEDERAL AND STATE CIVIL RIGHTS LAWS

FEDERAL TITLE VII OF CIVIL RIGHTS ACT OF

1964 Federal laws apply when an employer has 15 or more employees (except where noted)

OREGON REVISED STATUTES CHAPTER 659 / 659A

State laws apply when an employer has 1 or more employees (except where noted)

• Race • Color • National Origin • Sex (includes pregnancy-related conditions) • Religion • Retaliation (for opposing unlawful employment

practices, for filing a complaint, for testifying about violations or possible violations)

• Association with Protected Class

• Race • Color • National Origin • Sex (includes pregnancy-related conditions) • Religion • Retaliation (for opposing unlawful employment

practices, for filing a complaint, for testifying about violations or possible violations)

• Association with Protected Class • Sexual Orientation (includes Gender Identity) –

SB 2, effective January 1, 2008 • Age (40 and older in companies with 20+

employees) This law is known as the Age Discrimination in Employment Act or ADEA

• Age (18 and older)

• Americans with Disabilities Act • Physical or Mental Disability (in companies with 6+ employees)

• Family and Medical Leave Act of 1993 (in companies with 50+ employees)

• Oregon Family Leave Act (in companies with 25+ employees)

ADDITIONAL CLASSES PROTECTED BY STATE LAWS, ORS 659 / 659A (Apply when employer has 1 or more employees, except where noted.) • Marital Status • Family Relationship • Genetic Screening, Brain-wave Testing • Right to Testify at Employment Dept.

Hearings • Access to Employer-owned Housing • Right to Report Health Care Violations

• Leave to Donate Bone Marrow • Polygraph, Breathalyzer, Blood Alcohol • Expunged Juvenile Record • Right to Testify Before the State Legislature • Injured Workers (in companies with 6+

employees) • Leave to Serve in State-organized Militia ORS

399.065 • Right to File a Lawsuit, Testify in Criminal or

Civil Proceedings or Report Criminal Activities

• Leave to Serve in the State Legislature ORS 171.120-125

• Medical Release as a Condition of Continued Employment

• Opposition to Health or Safety Conditions ORS 654.062(5)(a)

• Use of Lawful Tobacco Products on Off-duty Hours

CLASSES PROTECTED BY CITY/COUNTY ORDINANCES • Sexual Orientation--Ashland, Beaverton, Bend, Benton County (Corvallis), Eugene, Hillsboro, Lake

Oswego, Lincoln City, Salem, Portland and Wasco County (The Dalles) • Source of Income--Ashland , Corvallis, Eugene and Portland



Recruiting Practices

No specific recruitment methods are required by civil rights laws. However, all methods may be subject to legal scrutiny. The following three-step process helps employers evaluate their recruiting practices:

1. Check for imbalances in your workforce.

2. Check for imbalances in the “applicant pool.”

3. Be prepared to show that recruiting methods reach a representative cross-sample of the local population.

Which of the following are acceptable forms of recruiting?

• Referrals obtained by word of mouth

• Preference given to relatives of employees

• Preference given to relatives of employer or relatives of supervisor

• In-house promotion or direct appointment without posting job

What kind of liability might result from always using the methods listed above?

Increasing the Scope of Recruitment

• Classified advertisement in newspapers of broad circulation

• Oregon Employment Department job service

• BOLI Apprenticeship and Training programs

• Agencies / Organizations that represent women and minorities

• Community service radio and TV announcements

• Publications directed to women and minorities

• Trade journals

• Minority schools

• The Internet



JOB ANALYSES AND POSITION DESCRIPTIONS To effectively evaluate applicants' qualifications, it is critical that accurate and up-to-date position descriptions are in place before the recruiting and hiring process begins. Position descriptions not only help both employers and applicants by clarifying duties, responsibilities and expectations, but they also are becoming increasingly important as legal evidence. The Americans with Disabilities Act, for example, requires a position description to exist before advertising or interviewing applicants for a particular job if the employer later desires to use it to refute a claim.

Step One: Conduct the Job Analysis Review qualifications of current employees (education, skills and experience) Employee questionnaires Observation / desk audits Interviews with current employees

Step Two: Identify Essential Functions Essential functions are the fundamental job duties of the employment position. The ADA regulations state that there are two main considerations when evaluating the essential functions of a job:

Are employees in the position actually required to perform the function? Would the job be fundamentally altered if the function were reassigned?

A job function may be considered essential for various reasons, including: The position exists to perform the function; There are a limited number of employees available to perform the function or among whom the function may be distributed; The function is highly specialized and an employee is hired to perform that function.

Determination of essential functions: Employer's judgment; Written job descriptions which were developed before recruiting and interviewing; Amount of time spent performing the function; Consequences of not performing the function; Terms of collective bargaining agreement (CBA) Work experience of present and past employees; Nature of work and employer's organization.



SAMPLE JOB DESCRIPTION

___________________________________________________________ XYZ, Inc. Department: Human Resources Job Title: Personnel Specialist Work location: Portland Employment Status: Regular Reports to: HR Director FLSA Status: Non-exempt Shift:: 8 am to 5 pm Effective Date: ______________

General Description: This position provides direct support and service to the Human Resources department on matters relating to recruiting, hiring, selection and training employees. Also acts as a resource to managers and employees, helping them to operate with the greatest flexibility within the framework of personnel policies, rules and the law.

Knowledge, skills and abilities required: Excellent oral and written communication skills. Good working knowledge of state and federal employment laws, and current human resources theory, research and practices. Skill in using word processing and spread sheet computer programs.

Essential Functions:

• Responds to inquiries from employees and the public with regard to job openings, the application and recruitment process, and all other factors included with appointment and promotion within the company.

• Prepares all recruitment announcements. Ensures appropriate postings are complete. • Prescreens candidates and schedules interviews. • Conducts reference checking. • Acts as the records manager in overseeing the processing, retention, purging, and

confidentiality of all the official personnel files. • Interprets personnel rules, policies and procedures to all levels of staff. • Conducts or assists in research and statistical studies regarding all phases of personnel

operation; i.e., layoff, procedures, training, turnover, etc. • Performs other duties and projects as assigned.

Working Conditions: General office environment. Spends at least 50 percent of time working at a PC terminal; 2-3 hours of phone work per day. One day of travel per month to field office in neighboring county.

Equipment Used: PC, CRT, calculator, typewriter and other standard office equipment for recording, storing and presenting information.

___________________________________________________



HIRING INTERVIEWS – DOS AND DON’TS The purpose of interview questions is to elicit relevant information about the applicant’s qualifications and suitability for the job. A good interview question helps the employer determine:

If an individual applicant is qualified for the job.

Which applicant in the applicant pool is best qualified for the job.

Which applicant will most likely succeed in the job.

Ask Job-Related Questions Each question posed during the job interview should relate to the applicant’s ability to perform one or more of the job’s essential functions.

Ask Applicants The Same Questions Plan questions ahead of time, and use the same questions with each job applicant.

Steer Clear of Questions Likely to Elicit Information on Protected Classifications For example, instead of asking broad questions about the applicant’s background or interests, and instead of making remarks like, “Tell me about yourself,” ask a focused question, such as “Tell me how your past experiences and interests have prepared you for this job.” Ask questions related to a protected classification only when you are confident there is a bona fide occupation requirement (“BFOR”), also known as a bona fide occupational qualification (“BFOQ”). BFOQ examples:

• A bartender must be 21 years old by law. OK to ask, “Are you 21 or over?” • You are hiring a priest for your Catholic church. OK to ask, “Are you

Catholic?”

Conduct Interviews in a Private Setting Give the applicant your full attention, and try to establish rapport to put the applicant at ease.

Ask Open-Ended Questions The goal is to have the applicant do the talking. Stay away from “yes” or “no” questions.

Document Take notes and record actual answers rather than interpretations of the applicant’s answers.



Examples of Questions You Should Not Ask What is your age? Where were you born? Are you are a citizen of the United States? Are you married? Single? Doesn't your wife work here? How many children do you have?

Are you pregnant? What is your religion?

Have you ever filed a workers' compensation claim? Have you ever had back problems?

Do you have any physical or mental impairments that may affect your performance in this position? Are you taking prescription medication?

Have you ever been treated for drug addiction or alcoholism? How many days were you absent from work because of illness last year? Have you been arrested in the last year? What is your height? Weight?

Examples of Questions You Can Ask

Why do you want this position? What are your qualifications for this job? Describe the training and experience that will enable you to perform the essential

functions of this job. Can you perform the job’s essential functions, either with or without reasonable

accommodation? What did you like best about your last position? What did you like least about your last position? What was your greatest accomplishment in your last job? What did you leave your last job? How does this job relate to your career plans? What research have you done about our organization to prepare for today’s

interview? What do you know about our company? Can you describe how you handle pressure? Can you provide examples of how you have successfully juggled competing

responsibilities? This job requires an individual to put in long hours. Are you able to work overtime? This job requires, on average, one out-of-town trip per month. How would you

handle those travel requirements? Why should I hire you? When we contact your current supervisor, what will he or she say are your strengths

and weaknesses? What was the most important lesson you learned in your last position?



RESTRICTIONS UNDER THE AMERICANS WITH DISABILITIES ACT: MEDICAL EXAMINATIONS AND INQUIRIES

The rules for conducting medical exams differ depending on the stage of the employment process involved: (1) Pre-offer testing of job applicants; (2) Post-offer testing; or (3) Testing of current employees. All applicants and employees of covered employers are protected by these requirements, not only those considered disabled under the law. (1) Pre-employment Inquiries / Pre-offer Examinations

• An employer may not ask if a job applicant is disabled or inquire about the nature or severity of a disability.

• Applicants may be asked about their ability to perform job related functions.

• An employer may not require a medical examination until after a job offer has been

made. A job offer may be conditioned on the results of the post-offer medical examination if all entering employees in the same job category are required to take the examination. Drug tests are not considered medical exams under the ADA and may be administered to job applicants prior to an offer of employment.

(2) Post-Offer Examinations

• An employer may require a medical exam and make medical inquiries after an offer of employment and before job duties have begun if this is required of all entering employees in the same job category.

(3) Examinations of Current Employees:

• An employer may not require medical exams of employees or ask about disabilities unless such exams or questions are job-related and consistent with business necessity;

• An employer may conduct voluntary medical examinations that are part of an employee

health program.

• ORS 659A.306 (previously 659.330) requires the employer to pay the out-of-pocket cost of any medical exam required as a condition of continuing employment. For purposes of this statute, drug tests are considered medical exams.



Recordkeeping Information obtained regarding the medical condition or history of an applicant or employee is to be collected and maintained on separate forms and in separate files and is generally treated as a confidential medical record. Illegal Drug Use The Oregon and federal disability laws do not apply to any job applicant or employee who is currently engaging in the illegal use of drugs if the employer takes action based on that conduct. An employer may:

Prohibit the transfer, offering sale, purchase or illegal use of drugs at the workplace.

Prohibit the possession of drugs except for drugs prescribed by a licensed health care professional.

Prohibit the use of alcohol at the workplace.

Require that employees not be under the influence of drugs or alcohol while on the job.

An employer may hold an employee who is an illegal drug user or an alcoholic to the same qualifications standards for employment, job performance and behavior to which the employer holds other employees.



EXERCISES

A. Evaluate the following interview / application questions:

1. Date of birth.

2. Where does your husband work?

3. Is there any reason that you would be unable to be on the job consistently from 8:00 am to 5:00 pm, Monday through Friday?

4. Are you able to travel?

5. How would your spouse feel about it if you worked nights?

6. If you were just starting over at your current job, what would you do differently?

7. Do you own your own home?

8. Whom should we notify in case of emergency?

9. Are you planning a family?

10. How has your previous work experience prepared you for greater responsibility?

11. What did you like most/least about your last job?

12. What was your best accomplishment on your most recent job?

13. Can you work weekends?

14. Do you own a reliable vehicle?

15. Why did you leave your last job?

16. Have you ever filed a workers' compensation claim?

17. Are you a citizen of the United States?

18. Have you ever been arrested for a sexual or violent crime?

19. What is your height and weight?

20. Have you ever been refused credit?

21. Are you a college graduate?

22. Can you read and write English?

23. How many days were you absent from work because of illness last year?



BACKGROUND CHECKS AND THE FAIR CREDIT REPORTING ACT

To minimize liability for the tort of “negligent hiring,” employers may choose to conduct background checks of applicants, in addition to obtaining references. It is prudent to conduct background checks when reviewing candidates for safety-sensitive jobs (e.g., a child care provider) or jobs involving a great deal of public contact (e.g., a television repairperson that regularly enters customers’ homes). In some cases, the use of background checks triggers obligations under the Fair Credit Reporting Act (FCRA).

The Fair Credit Reporting Act (FCRA) When Does FCRA Apply?

• The FCRA applies when you evaluate a job applicant using “consumer reports” and “investigative consumer reports” provided by an outside organization. FCRA applies, for example, when you obtain information from a credit bureau of private investigation agency, which assembles second-hand information about the applicant gathered by others.

• The FCRA applies not only to credit-related information, but also to criminal

history reports; driving records, drug and alcohol testing results; or reports on an individual’s character or personal characteristics obtained by interviews with friends or neighbors.

• The FCRA does not apply when you obtain a direct reference on an applicant,

because the former employer is providing first-hand information about the applicant.

What Does the FCRA Require of an Employer?

• Before obtaining or requesting a consumer report on a job applicant or current employee, you must provide the individual with a clear disclosure – in a document which is separate from application materials – that you may obtain a consumer report for employment reasons.

• Prior to requesting the report, you must have the individual sign an

authorization form.

• Prior to obtaining a consumer report, you must certify to the reporting agency that you provided the required disclosure and obtained the required authorization, and that you will advise the individual of their FCRA rights in the event you make an adverse employment decision based in any way on the information received in the report.

• Before taking an adverse employment action based on the consumer report,

you must give notice to the applicant, consisting of a copy of the report and a written description of a consumer’s FCRA rights.

• After taking an adverse employment action (deciding not to hire the applicant,

for example), you must advise the individual of the action; provide the individual with contact information for the reporting agency; and advise the individual of their rights to obtain a free copy of the report and to dispute the information it contains.

Contact Information

• For additional information on FCRA requirements and statutorily prescribed forms, check the Federal Trade Commission (FTC) website at www.ftc.gov or call (206) 220-6363.



REFERENCE CHECKING

Even when an applicant appears to be well-qualified, employers should attempt to obtain references. Doing so will provide supplemental information about the applicant and also minimize the chances of a negligent hiring claim. It is also advisable to inquire whether these is reason to believe the applicant would be dangerous or violent. When requesting a job reference on an applicant, employers should limit inquiries to those that would be acceptable in a job interview or on a job application form. Questions likely to elicit information about an applicant’s protected class membership should be avoided.

Examples of Questions You Can Ask

o Does this employee work well with others? o What job responsibilities did she have? o Does he finish his assigned tasks on time? o Is he polite to customers? To co-workers? To supervisors? o How was this person’s attendance record, not including absences that are legally

protected? o Did he have an excessive number of Monday and Friday absences that were unexcused? o We’re considering him for a computer programming position. How knowledgeable is he in

the area of software development? o Did you ever discipline her for any reason? Why? Did her performance improve? o Was this employee ever violent? Do you have any reason to believe this employee might

cause harm to anyone in the workplace? o Did she mistreat anyone in the workplace? o What were the best and worst qualities of this employee? o Does he have good organizational skills? o This job requires a lot of telephone work. Is this person professional on the phone? o Why is she no longer with your company? o Is he eligible for rehire?

Some Problematic Reference Questions

o Did he file workers’ compensation claims? o Was he sick a lot? Was he ever hospitalized? o How many days did he miss because of illness last year? o Does she have any personality problems? o Is she a smoker? o Is he a U.S. citizen? o Is he married? o Has he ever had his wages garnished? o Has she ever been on welfare?



GUIDELINES FOR COMMUNICATING REFERENCES

The main risk associated with giving references is that the employer may end up defending a defamation claim. Statements that adversely reflect on an employee’s abilities or character are defamatory. If those statements are also false, the employee may prevail in a defamation claim.

Elements of a Defamation Claim

• Unprivileged

• False and defamatory statement

• Made to a third party (publication)

• About the employee

• Which damages the employee’s reputation.

Employers have a “qualified privilege” to communicate defamatory information if the statements:

• Are made with a good-faith belief that they are true

• Serve a business interest or purpose.

• Are limited to that specific purpose.

• Are made on a proper occasion.

• Are communicated only to proper parties.



Reference-Giving Tips for Employers

• Develop a consistent response to all reference requests

• Route all requests for references to one or two key personnel who understand the legal issues raised by reference inquiries.

• Give only specific, documented facts, not subjective opinions.

• Provide only information that is job-related.

• Provide information only to those who have a business need to know.

• Obtain signed releases before giving responses to reference requests.

ORS 30.178 ACTIONS AGAINST FORMER EMPLOYER FOR DISCLOSURE OF INFORMATION 30.178 Liability of employer for disclosing information about employee to new employer; no action based on compelled self-publication. (1) An employer who discloses information about a former employee’s job performance to a prospective employer of the former employee upon request of the prospective employer or of the former employee is presumed to be acting in good faith and, unless lack of good faith is shown by a preponderance of the evidence, is immune from civil liability for such disclosure or its consequences. For purposes of this section, the presumption of good faith is rebutted upon a showing that the information disclosed by the employer was knowingly false or deliberately misleading, was rendered with malicious purpose or violated any civil right of the former employee protected under ORS chapter 659 or 659A. (2) A civil action for defamation may not be maintained against an employer by an employee who is terminated by the employer based on a claim that in seeking subsequent employment the former employee will be forced to reveal the reasons given by the employer for the termination. [1995 c.330 §1; 1997 c.754 §1; 2001 c.621 §68]



COMPLETING THE I-9 FORM

(IMMIGRATION REFORM AND CONTROL ACT OF 1986)

Effective Date The Immigration Reform and Control Act (IRCA) requires that an I-9 form be completed for all employees hired after November 6, 1986.

When to Complete the

I-9 Form

The I-9 form must be completed within three days of hire.

Where to Keep I-9 Forms

Keep all employee I-9 forms together in a separate file – not in the personnel files. The U.S. Citizenship and Immigration Services (USCIS), formerly the INS, routinely conducts audits and prefers that I-9 forms be kept separately from personnel records.

Legally Required Retention

Period

Retain I-9 forms for a minimum of three years, or one year after the worker’s employment ends, whichever date is later.

Contact Information

U.S. Citizenship and Immigration Services I-9 Forms Hotline: (800) 870-3676 Website: www.uscis.gov

Tips on Completing the I-9 Form

• Complete the I-9 form only after hiring.

• Don’t request or require specific forms of documentation. Doing so would violate the anti-discrimination provisions of IRCA. It’s the employee’s choice to provide any qualifying document from “List A,” or from “List B” and “List C.”

• Document all new employees equally. Some employers simply record the document

information on the I-9 form. Some employers also photocopy the documents provided and staple the copies to the I-9 form. Be consistent in whichever method you select.

• It’s not the employer’s job to conduct investigations on the validity of documentation

presented. If the documents presented appear to be valid on their face and you have no reason to be suspicious, you should accept the documents. You should reject documents that are in such poor condition that they are illegible, or documents that have obviously been altered.

• Employers are responsible for not knowingly hiring unauthorized aliens or maintaining

them as workers after their employment authorization has expired. Employers must calendar work permit expiration dates and conduct follow-up checks.



NEW-HIRE REPORTING REQUIREMENTS The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) requires all Oregon employers to report information on newly-hired employees to the Oregon Department of Justice’s Support Enforcement Division.

A “new hire is defined as any employee that is required to fill out a W-4 form. Any returning employee who has been absent for more than 45 days is also considered a “new hire” for purposes of employer reporting. If the returning employee had not been formally terminated or removed from payroll records, there is no need to report that individual as a new hire.

Oregon’s Employer Reporting Program

Effective Date October 1, 1998

Purpose

• Locate obligated parents to establish and enforce child support orders.

• Detect and prevent erroneous benefit payments by state agencies operating employment security and workers’ compensation programs.

• Oregon (and all states) report information to the National Directory of New

Hires (NDNH) to match against a national database of persons involved in child support cases.

Who Must Report

All employers and labor organizations. Multi-state employers have the option of either reporting new hires to the state in which they are working, or selecting one state in which to report all new hires. Employers who choose to report in one state must notify the federal Secretary of State as to which state was selected..

Reporting Timeline

Within 20 days of hire or rehire. Or two monthly transmissions, if reporting electronically or by magnetic tape. “Date of hire” is considered to be the first day services are performed for wages by an individual.

Data Employers Must Report

Each report must contain the six elements found on the W-4 form:

• Employer’s name, address and federal tax identification number; and

• Employee’s name, address, and Social Security number

How to Report

Send W-4 form, optional Oregon DOJ new hire reporting form, or equivalent employer form by mail, fax, disk, magnetic tape or electronically.

Where to Report

/ Contact Information

Oregon Department of Justice, Division of Child Support New-Hire Reporting Program 3200 Lancaster Drive NE, Salem, Oregon 97305 (503) 378-2868 / Fax (503) 378-2863

Chapter 3

The Applicant Pool: Sink or Swim—Presentation Slides

ClarenCe Belnavis

Fisher & Phillips LLPPortland, Oregon

Chapter 3—The Applicant Pool: Sink or Swim—Presentation Slides




1

www.laborlawyers.com

Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans

Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC


The Applicant Pool:Sink or Swim

Presented by:Clarence M. BelnavisFISHER & PHILLIPS LLP

Portland, OregonPhone: (503) [email protected]

1


Overview

• What is an applicant?• How do you create an applicant pool?• How to assess the applicant selection

processes?• Are there special requirements for federal

contractors?



2


What is an applicant?


That Depends

• The Office of Federal Contract Compliance Programs (“OFCCP”)– Anyone who expresses

interest in a position (including the resumes that come into your website) – despite their qualifications.



3


That Depends (continued)

• The EEOC– Per the Uniform Guidelines on Employee

Selection Procedures (“UGESP”), the EEOC and several other federal agencies use the same definition.

• Recently the focus was to make sure that companies capture new technologies that allow individuals to submit information over the internet or electronically.



• The Cambridge Dictionary– “A person who formally

requests something, especially a job . . . .”

• The Average HR manager– A qualified candidate for an

open employment position.



4



• There is a big difference between (a) qualified individuals for an open position and (b) anyone who expresses an interest in a position.


Who Is an Applicant?

• Regulations on “Internet Applicant” issued in 2005

• No regulations on “paper” applicants



5


Definition of Internet Applicant

• “Expression of Interest” received electronically

• Employer “considers” the candidate’s materials

• Indication of “Basic Qualifications”

• No indication of withdrawal


Internet Applicant Procedures

Establish in advance:

Protocols Data management Basic qualifications Non-comparative Objective Relevant



6


Internet Applicant Regulations“Expression of Interest”

• “Expression of Interest” received electronically– Fax– E-mail– Third-party vendor, e.g.,

monster.com, careerbuilder.com, etc.

– Paper and electronic received?


Internet Applicant Regulations“Consider the Applicant”

• The contractor “assesses the substantive information” with respect to the qualifications for a particular position

• Includes determining whether a candidate meets the basic qualifications



7


Internet Applicant Regulations“Basic Qualifications”

Establish in advance, in writing, and post: 1.Non-comparative Three years’ experience, not Top 5 most experienced

candidate

2.Objective A degree in a specific field, not a degree from a “good

school”

3.Relevant To the performance of the particular position and helps

meet business-related goals


Internet Applicant Regulations “No Indication of Withdrawal”

• Express withdrawal• Passive withdrawal

– Two attempted contacts– Expression of interest

does not fit the job applied for (salary, location, etc.)



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Internet Applicant Regulations Summary

If all four criteria are met:1. Employer considered the candidate’s materials;2. Indication of basic qualifications for a particular

position;3. Expression of interest received electronically; and 4. No withdrawal.

Then, the candidate has become an “applicant” and should be added to the applicant log.


The Applicant Pool

• Basically, the total number of individuals who have expressed an interest in a position.– What if there are no open

positions?



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The Applicant Pool (continued)

• What if the company keeps applications “on file” after a position is closed for future consideration?


Screening Processes



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Screening Process (continued)

• Use an HR professional or counsel to spot any process or criteria that could be inappropriate:– Title VII prohibitions on discrimination– State law prohibits on discrimination– Misc.

• Genetic information, stress tests, per se prohibitions based on criminal records, etc.



• Use a selection committee or designated person to review the applicant information that gets submitted.

• This person(s) should be knowledgeable of the requirements for the actual position and have defined criteria to the extent possible to eliminate candidates that do not make the cut.



11



• It is never a good idea for the decision maker(s) to . . . – Screen applicant “on the fly”– Be ignorant of what the job entails– Have no criteria to support any decisions that

they make



• The EEOC offers great tools online for help assess actual employment screening tests:– “http://www.eeoc.gov/policy/docs/factemploym

ent_procedures.html”

• Clearly any test used as a way to target someone because of a protected status is illegal.



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• Any test that you do use should be job related.

• If the test disparately impacts a particular group in a protected status, then you should determine if there are other ways to collect the info that does not have such a disparate impact.



• Current EEOC Guidance – Does the company’s selection process make

it statistically more difficult than pure chance for a member of a certain group to get a job. If yes, then this is evidence that the selection system was systematically screening out members of that group.

Note: 80% Rule (regarding the acceptable difference in hiring rates)



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Federal Contractor Issues

• Basic qualifications should be advertised to potential applicants or in job descriptions.

• Contractor can then screen based on expressions of interest (Salary expectations, desired work locations, etc.)

• Records related to any screening process must be maintained.


Federal Contractor Issues (continued)

• Contractors can design search procedures to reduce the number of resumes they need to retain from large searches as long as they do not depend on an assessment of qualifications.– For example, a contractor is looking for someone with a

Bachelor's degree in engineering in Cleveland, Ohio at $60,000 per year. A nationwide search of ManyResumes.com would produce 5000 resumes of job seekers with a B.S. in engineering, 200 interested in working as an engineer in Cleveland for $60,000 and 100 who both possess a B.S. and want to work as an engineer in Cleveland for $60,000 per year.



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Federal Contractor Issues (continued)

– If the contractor's initial search is for anyone meeting the basic qualification of a B.S. in engineering, the search will produce 5000 resumes, all of which would need to be retained under 41 C.F.R. 60-1.12(a). On the other hand, if the contractor initially for job seekers interested in working as an engineer in Cleveland for $60,000, the search will produce 200 resumes. If the contractor searches the pool of 200 resumes for the basic qualification of a B.S. in engineering, the search will produce 100 resumes that must be retained.


Questions?

Chapter 4

Employer Testing: Minimizing Risk, Maximizing Utility—Presentation Slides

tyler vOlm

Barran Liebman LLPPortland, Oregon

Chapter 4—Employer Testing: Minimizing Risk, Maximizing Utility—Presentation Slides




3/23/2015

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EMPLOYER TESTING:MINIMIZING RISK, MAXIMIZING UTILITY

Oregon State Bar | April 2, 2015

Tyler J. VolmBarran Liebman LLP

Overview

Types of Tests Sources of Federal Law: Title VII, ADA, ADEA Disparate Treatment v. Disparate Impact EEOC’s Uniform Guidelines on Employee

Selection Procedures (Test Validation) Examples from Case Law & EEOC Actions State Law Considerations Best Practices



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General Considerations

Tests are often an effective way to screen applicants and promote employees, but must be used deliberately and consistently

Proliferation of online job applications and increased safety and security concerns has increased demand for effective screening

Employers want the tests they use to be defensible against claims of discrimination

Stages of Employment Selection procedures are used as the basis for

employment decisions at numerous stages: Hiring Promotion Demotion Referral Retention Licensing and Certification Training Transfer See Uniform Guidelines (UGESP)



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Types of Tests

Cognitive Tests - assesses reasoning, memory, perceptual speed and accuracy, arithmetic and reading comprehension skills

Physical Ability Tests - measures physical ability to perform a particular task, strength of a specific muscle group, stamina

Personality and Integrity Tests - assesses the degree to which a person has certain traits or dispositions (e.g., dependability, safety)

Types of Tests

Sample Job Tasks - assesses performance and aptitude on particular tasks through simulations and job previews

Medical Inquiries, Psychological Tests, and Medical Examinations - assesses physical and mental health

Drug Tests Criminal Background Checks Credit Checks English Proficiency Tests



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Federal Law

Title VII of the Civil Rights Act of 1964

Title I of the Americans with Disabilities Act

Age Discrimination in Employment Act

Title VII

Prohibits employment discrimination based on race, color, religion, sex and national origin

Permits employment tests as long as they are not “designed, intended or used to discriminate” on any of the above basis 42 U.S.C. § 2000e-2(h)

Prohibits intentional discrimination in testing (disparate treatment) and the use of tests that have the effect of disproportionately excluding persons on the above basis (disparate impact)



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Title VII

Restrictions on scoring tests Employers are prohibited from: Adjusting the scores of; Using different scores for; or Otherwise altering the results of employment-

related tests……on the basis of race, color, religion, sex, or national origin. 42 U.S.C. §2000e-2(l)

Disparate Treatment

Intentional discrimination E.g., testing the reading comprehension of African

American applicants but not their white counterparts

Common issues Identifying and establishing differential treatment What is the employer’s reason for the difference in

treatment? Is it merely pretext? Evidence of bias? Discriminatory statements?

Culture of discrimination?



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Disparate Impact

Neutral tests or selection procedures that have the effect of disproportionate exclusion

Common issues Identifying and determining disparate impact Usually requires statistical analysis

Can the employer show that the selection procedure is job-related and consistent with business necessity?

If so, can the applicant/employee show that there is a less discriminatory alternative available?

Title I of the ADA

Prohibits private employers and state and local governments from discriminating against qualified individuals on the basis of a disability

Prohibits use of employment tests that screen out or tend to screen out individuals with a disability, unless it can be shown to be job-related and consistent with business necessity 42 U.S.C. 12112(b)(6)



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Title I of the ADA

Requires selection and administration of tests to be done in the most effective manner to ensure that the test accurately reflects skills, aptitude, etc., and not reflecting impairment 42 U.S.C. § 12112(b)(7)

Unlawful to not make reasonable accommodations, including in the administration of tests, unless it would impose an undue hardship 42 U.S.C. § 12112(b)(5)

Title I of the ADA

Specifies when an employer may require an applicant or employee to undergo a medical examination/make disability-related inquiries Medical exam: A procedure or test that seeks

information about an individual’s physical or mental impairments or health

Disability-related inquiry: Inquiries likely to elicit information about a disability

Three part analysis: different rules for pre-offer, post-offer but before work starts, and during employment

Monitor expanding definition of disability



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ADEA

Prohibits discrimination based on age (over 40) with respect to any term, condition, or privilege of employment

Prohibits disparate treatment and disparate impact Disparate impact claim can be defended if

employer can show that the challenged employment action is based on a reasonable factor other than age Smith v. City of Jackson, 544 U.S. 228 (2005)

Uniform Guidelines on Employee Selection Procedures (UGESP) Adopted jointly in 1978 by the U.S. Civil

Service Commission, DOL, DOJ, and EEOC Establishes uniform standards for employers

to use in selection procedures and to address adverse impact, validation, and record-keeping requirements

Not legislation or law, but referenced in numerous judicial decisions (with deference)



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Uniform Guidelines on Employee Selection Procedures (UGESP) Establishes 4/5ths or 80% rule for

determining adverse impact in a selection procedure

Compares selection/passage rate for the group with the highest rate with the selection rate of other groups; if other groups do not have passage rate equal to or greater than 80% of the highest group, this is considered evidence of adverse impact

Uniform Guidelines on Employee Selection Procedures (UGESP) Outlines three different ways employers can

show that their tests are job-related and consistent with business necessity under a disparate impact analysis (“Test Validation”) 1. Content validity 2. Criterion validity 3. Construct validity



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Test Validation

Content validity - justifying a selection procedure by showing that it representatively samples significant parts of the job

Criterion validity - justifying a selection procedure by a statistical relationship between scores on the test [or selection procedure] and measures of job performance

Construct validity - identifying the psychological trait (construct) which underlies successful job performance then devising a selection procedure to measure presence/degree of that construct

Gulino v. Board of Ed., 907 F.Supp.2d 492 (S.D.N.Y. 2012)

New York City required teachers to pass the standardized Liberal Arts and Sciences licensing test

Class of teachers challenged, claiming the test has a disparate impact on African American and Latino test takers and that it was not properly validated as a job-related measurement of qualification to teach



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Gulino v. Board of Ed.

Court concluded that test was not properly validated because developers failed to conduct a suitable job analysis before creating the test, the content of test was not related to content of the job, and there was a lack of empirical evidence that it resulted in an enhanced job performance by new hires

Be thoughtful at every stage of test development, administration, and scoring

Leprino Foods (2012)

Federal contractor used “employee-skills assessment-testing system” in its application process that included applied math section

DOL (through Office of Federal Contract Compliance Programs) alleged that test had an adverse impact on minority job applicants because it tested skills unrelated to labor jobs

Pass rate= 72% (Caucasian); 49% (Minority)



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Leprino Foods

Employer agreed to pay $550,000 and employ 13 original applicants In 2012, Kraft Foods paid $227k; Gerber $900k

It does not matter what you call your test! If it does not accurately tests the skills of the particular job, it is invalid

Federal contracts should keep an eye on upcoming changes to Section 508 of the Rehabilitation Act of 1973 (accessibility for electronic and information technology)

EEOC v. Ford Motor Co. & UAW

Class action brought by African Americans rejected for an apprenticeship program

Selection system included a written cognitive test that measured verbal, numerical, and spatial reasoning to evaluate mechanical aptitude

Although test had been validated in 1991, it continued to have statistically significant disparate impact and less discriminatory procedures had been developed in the meantime, but not incorporated



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EEOC v. Ford Motor Co. & UAW

Settled in 2005 for $8.55 million. Ford also agreed to place 280 African Americans on apprentice lists and revise its tests

Regularly review and update tests to ensure they are using the least discriminatory procedure

EEOC v. Dial Corp.

Strength test disproportionately rejected women for entry-level production jobs

Employer defended the test by citing to fewer injuries to hired workers

EEOC provided expert testimony that test was considerably harder than the job required and that reduction in injuries began two years before test was implemented



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EEOC v. Dial Corp.

In 2006, Eighth Circuit upheld the trial court’s finding that the test violated Title VII under a disparate impact theory

Make sure testing tracks actual job requirements and be sure to act on evidence that test has a disparate impact on any protected group

Paige v. California Highway Patrol, 291 F.3d 1141 (9th Cir. 2002)

Various written and oral exams administered as part of promotional process

Class of minority officers challenged CHP argued that appropriate statistical

analysis was to look at each separate supervisory position

Plaintiffs argued for the aggregation of the data for all supervisory positions



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Paige v. California Highway Patrol

Ninth Circuit found sufficient commonality in the positions to justify aggregation Court also aggregated different minority groups, but

rejected use of external census data

CHP also failed to show appropriate validation process (for individual parts and as a whole), and there was no evidence that it tested for skills critical to supervisory ranks Limited discussion on validation efforts

See also Zottola v. City of Oakland, 32 Fed.Appx. 307 (9th Cir. 2002)

State Law Considerations

Oregon restricts the availability and regulates the timing of medical testing Limitations on breathalyzer, polygraph,

psychological stress and genetic tests Restrictions on acquisition and use of credit

history in making employment decisions Limited exceptions

Notice requirements and waiting period when considering criminal records “Ban the Box” being considered in Portland



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Outside Vendor Due Diligence

Check credentials and references Establish price and scope of services Ask vendor to explain conformance with UGESP,

specific criteria, and documentation requirements. How is evidence collected?

Will vendor evaluate effectiveness for company? Are regular updates included? How often? Ask for technical report of development and

validation of the test Any company or industry specific issues/Qs

Best Practices

Ensure that tests are validated for the positions and purposes for which they are used and comply with UGESP Regularly audit job procedures and requirements

and update accordingly Be thoughtful at every stage of test development,

administration, and scoring

Collect and preserve all evidence



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Best Practices

If a selection procedure screens out a protected group, determine whether there is an effective alternative Evaluate adverse impacts of all tests

Train managers and test administrators in proper scoring technique Occasional independent audit to confirm

Establish internal reporting mechanism Consider issues related to specific industry

Perform due diligence on outside vendors

Questions?

Tyler J. VolmBarran Liebman LLP

[email protected]

Chapter 5

Medical Inquiries and Examinations of Job Applicants

leslie BOttOmly

Ater Wynne LLPPortland, Oregon

Contents

A. Medical Inquiries and Examinations Under Disability Law . . . . . . . . . . . . . . . . . . . 5–11. Pre-Offer Inquiries and Examinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–12. Post-Offer/Pre-Employment Inquiries and Examinations . . . . . . . . . . . . . . . . 5–53. Drug and Alcohol Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–74. Federal Contractors: Request to Self-Identify as “Disabled” . . . . . . . . . . . . . . . 5–8

B. Inquiries Under the Genetic Information Nondiscrimination Act . . . . . . . . . . . . . . . . 5–81. Definition of Genetic Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–82. Prohibition on Obtaining Genetic Information . . . . . . . . . . . . . . . . . . . . . . . 5–83. Genetic Information Under Oregon Law . . . . . . . . . . . . . . . . . . . . . . . . . 5–10

Chapter 5—Medical Inquiries and Examinations of Job Applicants




Employers may desire to seek health-related information from applicants to determine whether an individual applying for a job is capable of safely performing required tasks, to eliminate drug users, and to record any pre-existing injuries or limitations (in case the employee later files a workers’ compensation claim and alleges that the injury or limitation was work-related).

Notwithstanding an employer’s desire for medical information under any of the foregoing circumstances, there are many limitations on the employer’s ability to obtain it. The scope of permissible applicant inquiries depends upon the phase of hiring at which the information is sought (i.e., pre-offer, post-offer), and the reason for the inquiry. Even an innocent inquiry about an applicant’s physical or mental condition could potentially violate state or federal laws.

A. Medical Inquiries and Examinations Under Disability Law

The Equal Employment Opportunity Commission (EEOC), which enforces the Americans with Disabilities Act, has issued a number of helpful guidances addressing the topic of pre-employment medical inquiries and examinations:

• Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), referred to as the “EEOC Guidance.”1

• Questions and Answers: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), referred to as the “EEOC Q&A.”2

• ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (1995), referred to as the “EEOC PreEmployment Guidance.”3

1. Pre-Offer Inquiries and Examinations

The Americans with Disabilities Act4 (applicable to employers with 15 or more employees) and Oregon’s parallel state law5 (applicable to employers with six or more employees) both regulate medical inquiries and medical examinations of job applicants. Before making an offer of employment, no medical inquiries or examinations are permissible, even if they are job-related: “* * * it is unlawful for a covered entity to conduct a medical examination of an applicant or to make inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of such disability.”6

(a) What is a disability-related inquiry?

1 http://www.eeoc.gov/policy/docs/guidance-inquiries.html. 2 http://www.eeoc.gov/policy/docs/qanda-inquiries.html. 3 http://www.eeoc.gov/policy/docs/preemp.html. 4 42 USC 12101 et seq. 5 ORS 659A.103 et seq.; OAR 839-006-0200 et seq. 6 29 CFR 1630.13; see also ORS 659A.133(1); OAR 839-006-0242(1).



According to the EEOC, a disability-related inquiry is a question “that is likely to elicit information about a disability, such as asking employees about: whether they have or ever had a disability; the kinds of prescription medications they are taking; and, the results of any genetic tests they have had.”7 Disability-related inquiries may include the following (note that although the examples refer to “employees,” the examples apply to job applicants as well):8

• asking an employee whether s/he has (or ever had) a disability or how s/he became disabled or inquiring about the nature or severity of an employee's disability;

• asking an employee to provide medical documentation regarding his/her disability;

• asking an employee's co-worker, family member, doctor, or another person about an employee's disability;

• asking about an employee's genetic information;

• asking about an employee's prior workers’ compensation history;

• asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee's taking of such drugs or medications; and,

• asking an employee a broad question about his/her impairments that is likely to elicit information about a disability (e.g., What impairments do you have?).

(b) Questions that are not disability-related inquiries

Conversely, according to the EEOC, the following are not disability-related inquiries and thus are permissible9:

• asking generally about an employee's well-being (e.g., How are you?), asking an employee who looks tired or ill if s/he is feeling okay, asking an employee who is sneezing or coughing whether s/he has a cold or allergies, or asking how an employee is doing following the death of a loved one or the end of a marriage/relationship;

7 EEOC Q&A Question No. 1; 29 CFR 1630.13. 8 EEOC Guidance B(1) (footnotes omitted). The EEOC Guidance was issued prior to the ADA Amendments Act,

which broadened the definition of “disability.” Accordingly, a number of these examples of permissible questions may be outdated. For example, less severe or shorter term conditions may now qualify as disabilities, such as allergies or a complications relating to pregnancy. http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm.

9 EEOC Guidance B(1) (footnotes omitted). The EEOC Guidance was issued prior to the ADA Amendments Act, which broadened the definition of “disability.” Accordingly, a number of these examples of permissible questions may be outdated. For example, less severe or shorter term conditions may now qualify as disabilities, such as allergies or a complications relating to pregnancy. http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm.



• asking an employee about nondisability-related impairments (e.g., How did you break your leg?);10

• asking an employee whether s/he can perform job functions;

• asking an employee whether s/he has been drinking (but not about drinking habits such as how much the employee drinks);

• asking an employee about his/her current illegal use of drugs (but not about past drug addiction);

• asking a pregnant employee how she is feeling or when her baby is due; and,

• asking an employee to provide the name and telephone number of a person to contact in case of a medical emergency.”

• A covered entity may make pre-employment inquiries into the ability of all applicants to perform job-related functions, and/or may ask applicants to describe or to demonstrate how, with or without reasonable accommodation, the applicants will be able to perform job-related functions.11

• Stating the attendance requirements of the job and asking if the applicant can meet them.12

In addition, it is permissible to ask all applicants if they need reasonable accommodation for the hiring process and, if an employee requests accommodation and the disability is not obvious, the employer may ask for documentation of the disability and functional limitations as they pertain to the accommodation request.13

(c) What is a medical examination?

The EEOC defines a medical examination as “a procedure or test that seeks information about an individual's physical or mental impairments or health.”14 The EEOC lists the following factors that should be considered to determine whether a test (or procedure) is a medical examination: (1) whether the test is administered by a health care professional; (2) whether the

10 But note that under ADA Amendments Act, an Employer may not discriminate based upon an actual or

perceived impairment, whether or not the impairment limits or is perceived to limit a major life activity (except for transitory and minor impairments). Thus focusing on or asking about ANY impairments post-ADA Amendments Act may be unwise. 29 CFR 1630.2(l).

11 EEOC PreEmployment Guidance, p. 4. In addition, if the employer does not ask all applicants to demonstrate, they may ask a single applicant to do so if the employer has a reasonable belief the applicant will not be able to perform a job function because of a known or obvious disability (e.g. the applicant’s disability is apparent – such as use of a wheelchair, or the applicant disclosed the disability). Id. at p. 5.

12 EEOC PreEmployment Guidance, p. 7. The employer can ask how many days an applicant was absent from his last job but cannot ask how many days the employee was out sick in their last job, as this gets at the severity of illness. Id.

13 EEOC PreEmployment Guidance, p. 5. 14 EEOC PreEmployment Guidance, p. 13.



test is interpreted by a health care professional; (3) whether the test is designed to reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task; (6) whether the test is normally given in a medical setting; and, (7) whether medical equipment is used.15

The following are all considered medical examinations under the ADA:16

• vision tests conducted and analyzed by an ophthalmologist or optometrist;17

• blood, urine, and breath analyses to check for alcohol use;

• blood, urine, saliva, and hair analyses to detect disease or genetic markers (e.g., for conditions such as sickle cell trait, breast cancer, Huntington's disease);

• blood pressure screening and cholesterol testing;

• nerve conduction tests (i.e., tests that screen for possible nerve damage and susceptibility to injury, such as carpal tunnel syndrome);

• range-of-motion tests that measure muscle strength and motor function;

• pulmonary function tests (i.e., tests that measure the capacity of the lungs to hold air and to move air in and out);

• psychological tests that are designed to identify a mental disorder or impairment;

• diagnostic procedures such as x-rays, computerized axial tomography (CAT) scans, and magnetic resonance imaging (MRI).

(d) What is not considered a medical examination?

The following procedures and tests are generally are not considered medical examinations under the ADA:18

• tests to determine the current illegal use of drugs;

• physical agility tests, which measure an employee’s ability to perform actual or simulated job tasks, and physical fitness tests, which measure an employee's performance of physical tasks, such as running or lifting, as long

15 EEOC PreEmployment Guidance, p. 13. 16 EEOC Guidance B(2). 17 Because uncorrected vision and hearing tests have been controversial, they are addressed in greater detail in

applicable regulations. 29 CFR 1630.10(b); OAR 839-006-0200. 18 EEOC Guidance B(2).



as these tests do not include examinations that could be considered medical (e.g., measuring heart rate or blood pressure);

• tests that evaluate an employee's ability to read labels or distinguish objects as part of a demonstration of the ability to perform actual job functions;

• psychological tests that measure personality traits such as honesty, preferences, and habits;

• polygraph examinations.

However, the fact that the foregoing tests are not considered medical examinations does not mean that they are permissible. Many states have laws prohibiting various kinds of testing. For example, Oregon law prohibits polygraph examinations, psychological stress tests, and other forms of “lie detector” testing.19

(e) Asking if applicant can perform job functions, asking about accommodations.

To determine whether an applicant (including an existing employee applying for a new job) is qualified for a particular position, the ADA and Oregon disability law permit employers to conduct limited inquiries into an individual’s ability to perform specific job-related functions.20 The employer may ask whether the individual can, with or without reasonable accommodation, perform the job functions or ask the individual to demonstrate how, with or without reasonable accommodation, he or she will be able to perform the job functions. 21 Generally, if any applicant is to be asked, then all applicants should be asked. In such cases, the employer should provide the applicant with a job description or list of job functions.

If the employer “could reasonably believe that an applicant will need reasonable accommodation to perform job functions” either because of obvious disability, disclosed disability, or disability known to employer, the employer can ask just this applicant if they will need reasonable accommodation and the nature of the accommodation.22 However, the EEOC notes that it will carefully scrutinize instances where employers learn of such accommodations at this stage of the hiring process and then do not extend an offer.23

2. Post Offer/Pre-Employment Inquiries and Examinations

Under both the ADA and Oregon law, once an employer extends a conditional job offer, but before the applicant starts work, the employer may make medical inquiries and examinations, provided it does so for all starting employees in the same job category.24 Pre-employment medical examinations need not be job-related and consistent with business necessity. However,

19 See ORS 659A.300. 20 29 CFR 1630.14(a). 21 EEOC PreEmployment Guidance, p.4. 22 EEOC PreEmployment Guidance, p. 6. 23 EEOC PreEmployment Guidance, p. 6 note 7. 24 ORS 659A.133(3); OAR 839-006-0242. 42 U.S.C. § 12112(d)(3).



these post-offer medical examinations and inquiries may NOT seek genetic information, including family medical history (see GINA discussion below).

(a) What is a bona fide job offer?

There has been litigation regarding what qualifies as a bona fide “job offer” such that the ability to conduct a medical examination is triggered. See Leonel v. American Airlines, 4500 F3d 702 (9th Cir. 2005). In Leonel, the Ninth Circuit Court of Appeals held that despite providing a “conditional job offer”, American Airlines improperly required medical information before completing other critical non-medical components of the hiring process. Specifically, American Airlines had not completed employment verification and criminal history checks before requiring medical information. “A job offer is real if the employer has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer.” 25 American Airlines argue that because it did not look at the medical information until the other parts of the hiring process had been completed, it did not violate the prohibition. The court rejected this position, holding that it did not matter when the employer actually looked at the information. The statute clearly prohibited collecting it prior to an offer.

(b) Information must be kept confidential; Employer must pay

All information obtained from applicant medical inquiries or examinations must be collected and maintained on separate forms and in separate files and must be treated as a confidential medical record (subject to limited exceptions).26

If an Oregon employer requires a pre-employment medical evaluation, it must pay for it.27

(c) How employers can use this information

The employer can use the information from medical inquiries and examinations to determine if the individual is able to do the job. If the results of the examination are used as a screening mechanism, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions must not be possible with reasonable accommodation.28 For example, the fact that an applicant has an impairment that limits lifting to 35 pounds should not be used to disqualify the applicant from a job that requires lifting only up to 10 pounds. Finally, an employer that withdraws a job offer based on a medical examination should be able to show that the individual was unable to perform the essential functions of the position with reasonable accommodation, if necessary or that the individual posed a direct threat (and no accommodation could remove the threat).29

25 EEOC PreEmployment Guidance, p.17. 26 ORS 659A.133(3)(b); 29 CFR 1630.14(b)(1). 27 ORS 659A.306; OAR 839-006-0242(4). 28 29 CFR 1630.14(b)(3). 29 See 29 CFR 1630.14 B(3); 29 CFR 1630.15.



3. Drug and Alcohol Testing

Tests for illegal drugs are not considered medical examinations under the ADA or Oregon law.30 Private employers may, therefore, administer drug tests to insure that applicants are not under the influence or currently engaging in the illegal use of drugs.

(a) Medical Review Officers

An applicant who tests positive for illegal drug use may be asked about lawful drug use or possible explanations for the positive result other than the illegal use of drugs. Although the ADA does not require the use of an independent intermediary for this inquiry, most employers use a Medical Review Officer (MRO) or other qualified personnel to determine if a “dirty” drug test is explained by a lawful prescription. If the test is due to lawful drug use, the MRO generally reports the test as negative to the employer.

(b) Evolving Status of Marijuana

Additional concerns exist when an applicant tests positive for marijuana and claims its use was authorized by state law. The Oregon Supreme Court held in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries31 that because marijuana is still illegal under federal law, an employer who terminated an employee for current medical marijuana use did not violate state disability law. The Court held that despite having a medical marijuana card, the employee was a current user of illegal (under federal law) drugs and therefore unprotected by the state disability law if terminated on that basis. After that case, the Oregon Bureau of Labor and Industries has apparently conceded that while medical use is permitted in Oregon, the law does not require an employer to accommodate an employee’s disability through the medical use of marijuana.32 Measure 91, effective July 1, 2015, legalized recreational marijuana in Oregon. However, the measure stated that “this Act may not be construed: (1) To amend or affect in any way any state or federal law pertaining to employment matters.”33 It appears that the legalization of recreational marijuana in Oregon has not changed the analysis under Emerald Steel, at least as of yet.

(c) Alcohol Testing

Unlike tests for illegal drugs (which are not considered medical examinations under disability laws), alcohol tests are considered medical examinations, and thus are prohibited pre-offer. Although federal law permits alcohol tests post offer, Oregon law prohibits the use of a breathalyzer except in limited circumstances.34

30 29 CFR 1630.16(c); OAR 839-006-0242. 31 348 Or 159, 230 P3d 518 (2010). 32 See Oregon Bureau of Labor and Industries Civil Rights Laws: A Handbook for Oregon Employers 2012 Ed.

p. 101. 33 Control, Regulation and Taxation of Marijuana and Industrial Hemp Act. SECTION 4.

www.oregon.gov/acc/marijuana/documents/measure91.pdf. 34 ORS 659A.300.



4. Federal Contractors: Request to Self-Identify as “Disabled”

Asking applicants to self-identify as disabled pursuant to legally mandated or voluntary affirmative action programs does not violate the ADA’s prohibitions on medical inquiries. Such requests must be voluntary, the information kept confidential, and used only for purposes of the affirmative action program.35

B. Inquiries Under the Genetic Information Non Discrimination Act

The Genetic Information Nondiscrimination Act of 2008 (“GINA”), prohibits employers from asking for “genetic information”; nor may the employer discriminate against an applicant or employee based upon such information.36 The prohibition against gathering genetic information, unlike general medical inquiries under the ADA (which can be made post-offer/pre-employment), continues under GINA at all times, including after an offer of employment has been made.

1. Definition of genetic information.

The regulations define genetic information as information about:37

(i) An individual's genetic tests;

(ii) The genetic tests of that individual's family members;

(iii) The manifestation of disease or disorder in family members of the individual (family medical history);

(iv) An individual's request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual; or

(v) The genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

Excluded from the definition of genetic information is information about the sex or age of the individual, the sex or age of family members, or information about the race or ethnicity of the individual or family members that is not derived from a genetic test.38

2. Prohibition on obtaining genetic information.

GINA prohibits an employer from requesting genetic information of an individual or the individual’s family member. This prohibits “making requests for information about an 35 EEOC Q&A at p. 11. 36 42 USC 2000ff–1(a). 37 29 CFR 1635.3(c) (1). 38 29 CFR 1635.3(c)(2).



individual’s current health status in a way that is likely to result in a covered entity obtaining genetic information.”39 Specifically prohibited by regulation are “. . . conducing an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information; actively listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining genetic information; and making requests for information about an individual’s current health status in a way that is likely to result in a covered entity obtaining genetic information.”40

An employer that inadvertently obtains genetic information does not violate GINA.41 However, if the employer asks for medical information in an otherwise permissible manner and obtains genetic information without having instructed the provider not to provide genetic information, the employer will generally not be able to assert that the receipt of genetic information was “inadvertent.” The regulations suggest providing the following instruction to sources asked to provide medical or health related information:42

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information” as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Examples of inadvertent acquisition include when genetic information is provided in response to casual conversation between a supervisor and employee, such as a general health inquiry (e.g., “How are you?” or “Did they catch it early?” asked of an employee who was just diagnosed with cancer); or where a supervisor overhears a discussion of such information.43

Employers should make sure their post-offer/pre-employment medical examinations and inquiries do not seek genetic information. In a recent (April 2014) letter to a law enforcement agency responding to the agency’s request for clarification of its obligations under GINA, the EEOC noted that the agency’s standard medical history form violates GINA because it asks

39 29 CFR 1635.8(a). 40 29 CFR 1635.8(a). 41 29 CFR 1635.8(b)(1). 42 29 CFR 1635.8(b)(1)(i)(B). 43 29 CFR 1635.8(b)(1)(i)(D).



“[h]ave you, or any of your immediate family (father, mother, sister and/or brother) ever had any of the following” [listing a number of medical conditions].44

(3) Genetic Information Under Oregon Law.

It is an unlawful employment practice for an employer (employing one or more employees) in the State of Oregon, to seek to obtain, to obtain or to use genetic information of an employee or a prospective employee, or of a blood relative of the employee or prospective employee, to distinguish between or discriminate against or restrict any right or benefit otherwise due or available to an employee or a prospective employee.45

44 http://www.eeoc.gov/eeoc/foia/letters/2014/gina_ada_medical_history_4_21.html. 45 ORS 659A.303(1).

Chapter 6

Background Checks: Applicant Checks and Employer Best Practices—Presentation Slides

emily shults

Bullard Smith Jernstedt WilsonPortland, Oregon

Chapter 6—Background Checks: Applicant Checks and Employer Best Practices—Presentation Slides




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Background Checks: Applicant Checks and Employer Best PracticesApril 2, 2015

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Presented by: Emily Q. Shults

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Background Checks₋ Why do them?₋ What does the EEOC think about criminal

background checks?₋ City of Portland’s “Ban the Box” Ordinance ₋ Complying with the Federal Credit Reporting Act

(FCRA)₋ Oregon law on the use of credit history

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Why do background checks on applicants and employees?₋ To evaluate character and trustworthiness₋ To keep the workplace safe₋ To prevent theft₋ To comply with the law, i.e. child care providers₋ To reduce liability for negligent hiring

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EEOC Strategic Enforcement Plan₋ A top nationwide enforcement priority for the EEOC

will be the elimination of systemic barriers in recruitment and hiring

₋ Employers should review all hiring policies and procedures, particularly those relating to the use of criminal background checks, and make sure all employees involved in the hiring process have been properly trained

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EEOC Guidance Regarding Criminal Background Checks₋ Enforcement guidance was issued April 2012, Employer

Guide in 2014 (supplemental materials)₋ Guidance looks at the relationship between the

consideration of criminal history and unlawful discrimination under Title VII

₋ The EEOC’s position: the use of criminal background checks results in a disproportionate number of individuals from protected classes (particularly African Americans and Hispanics) being unfairly screened out of the employment selection process

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The Problem₋ If the use of criminal background information results

in a disparate impact on a protected class of individuals, the employer must show that the practice is “job-related and consistent with a business necessity”

₋ The EEOC has cases pending alleging this kind of discrimination under Title VII

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Business Necessity Defense₋ Two circumstances in which the defense will be met:₋ #1 – Employer validates its criminal background screen using

the “Uniform Guidelines on Employee Selection Procedures”₋ A set of guidelines adopted by the EEOC, Civil Service Commission,

Dept. of Labor and Dept. of Justice regarding the use of tests and other selection tools such as criminal background checks

₋ They provide a framework for employers to use in evaluating employee selection procedures

₋ The Guidelines can be found online at http://www.uniformguidelines.com/uniformguidelines.html

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Business Necessity Defense₋ #2 – Employer develops a “targeted screen” with an

“individualized assessment”₋ Employer considers at least the following when screening:

₋ the nature and gravity of the crime (deception or dishonesty involved? shoplifting vs. embezzlement?)

₋ the time elapsed since the conduct₋ the nature of the job (job duties/essential functions, level of

supervision, work environment and types of interaction with others)

₋ A rational connection should be made between success in the position and the criminal background screen

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Business Necessity Defense₋ #2, cont.

₋ Then look at the individuals who would be excluded by the screen to determine whether the results are consistent with business necessity

₋ Notify the individual(s) that he/she has been excluded and give them an opportunity to provide additional information

₋ Such information may include:₋ Job references, bonding status, rehabilitation efforts or the identification of

inaccuracies in the background check₋ If the person chooses not to provide additional information, the

employer is free to make its employment decision based on the targeted screen results

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Business Necessity Defense₋ Additional considerations:

₋ An arrest is not proof of criminal conduct (not convicted beyond a reasonable doubt), therefore, an exclusion based on an arrest record alone will not meet the business necessity defense

₋ There are exceptions for certain positions subject to other federal laws, i.e. an individual cannot be an airport screener if he/she has been convicted of certain crimes in the last 10 years

₋ Compliance with conflicting federal law is a defense to a charge of discrimination; state and local laws are preempted by Title VII

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Portland City Ordinance₋ The Portland City Council is now considering an

ordinance (Removing Barriers to Employment) which would prohibit employers from fromconducting a background check or asking about a candidate's criminal history until there's a conditional job offer on the table unless the crime for which the person was convicted is directly related to the job or another exception applies.

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Removing Barriers to Employment Ordinance₋ Why?

₋ Ex-cons’ records may prevent them from finding employment

₋ Statistics show that ex-cons who do find employment are far less likely to reoffend

₋ Racial disparities in incarceration rates mean that blanket exclusions from employment based on criminal history may have a disparate impact on racial minorities

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Removing Barriers to Employment Ordinance₋ Definitions₋ Use of Criminal History in Employment Decisions₋ Exceptions₋ Required Process ₋ Data Collection₋ Enforcement

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Best Practices₋ #1 – Tread cautiously and review job application

materials; eliminate blanket policies that automatically exclude individuals based on any criminal record

₋ #2 – Limit inquiries to convictions which are job-related₋ #3 – Develop a narrowly tailored written policy for

targeted screening and document the justifications for all targeted screens

₋ #4 – Train decision-makers on how to implement your policy on criminal background checks

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Best Practices, cont.₋ #5 – Keep criminal history records confidential and

dispose of them responsibly₋ #6 – While not explicitly required by the EEOC,

conducting individualized assessments of excluded persons will help to avoid Title VII liability

₋ #7 – Document all individualized assessments!

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Credit Reports Under Oregon Law₋ In general, it is unlawful in Oregon to obtain or use

for employment purposes an applicant’s/employee’s credit history information (ORS 659A.320; OAR 839-005-0080)

₋ This means you can’t refuse to hire, refuse to promote, terminate, discipline, demote or discriminate against an applicant/employee based on information regarding creditworthiness, credit standing or credit capacity

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Credit Reports Under Oregon Law, cont.₋ Exception #1 – Employers not covered

₋ Federally insured banks and credit unions₋ Employers of certain public safety officers (details in the

statute)₋ Employers that are required by law to use individual credit

histories for employment purposes

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Credit Reports Under Oregon Law, cont.₋ Exception #2 – Employers who obtain or use the

information because it is “substantially job-related”₋ Credit history is substantially job-related if:

₋ An essential function of the job requires access to financial information not customarily required in a retail transaction other than a loan or extension of credit

₋ i.e. a cashier’s access to check or credit card information is not enough, but an employee who has access to bank account information and sources and amount of income probably is

₋ The employer is required to obtain credit history information as a condition of bonding or insuring the employee

₋ The reason for use of the information must be disclosed to the applicant/employee in writing (burden on employer)

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Credit Reports Under Oregon Law, cont.₋ An applicant or employee claiming a violation of

ORS 659A.320 may bring a civil action under 659A.885.

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What is the Fair Credit Reporting Act (FCRA)?₋ Despite its name, FCRA is not just about credit

reports₋ Among other things, FCRA regulates the collection,

dissemination and use of “consumer reports” in the employment setting

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What is a “consumer report”?₋ Any communication by a “consumer reporting

agency” relevant to a person’s credit worthiness, credit history, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living

₋ Examples: criminal background checks, employment history summaries, and drug-test results if assembled and supplied by a consumer reporting agency

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What may not be included in “consumer reports”?₋ There are a number of things which are prohibited

from inclusion in “consumer reports” unless an exemption applies₋ Including, but not limited to, bankruptcies 10+ years old;

civil suits and judgments 7+ years old; arrests 7+ years old; tax liens paid off 7+ years ago; collections 7+ years old

₋ Exemptions: a report to be used in connection with the employment of a person at an annual salary of $75,000 or more; teachers and child-care workers may also be subject to a more extensive check

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What is a “consumer reporting agency”?₋ Any person or entity in the business of assembling

such information and furnishing consumer reports to third parties

₋ Examples: most reference-checking services, online reference-checking databases, credit reporting agencies

₋ Temp agencies have a special exemption allowing them to provide information about their workers to clients without triggering FCRA as long as certain disclosures are made to the workers

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WWW.BULLARDLAW.COM

What is an “investigative consumer report”?₋ An enhanced consumer report₋ It includes information regarding character, personal

characteristics, general reputation or mode of living which was obtained by personal interviews with neighbors, friends and associates

₋ Caution! There are additional requirements under FCRA when “investigative consumer reports” are used (tell the applicant or employee of his or her right to a description of the nature and scope of the investigation)

₋ We’ll focus on the more common “consumer report”

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When does FCRA not apply?₋ FCRA does not apply to employers gathering

information about applicants or employees on its own because a “consumer reporting agency” is not being used

₋ Examples:₋ Calling past employers or job references₋ Getting a driving record directly from the State₋ Google and Facebook searches? Maybe

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Complying with FCRA₋ Before getting a consumer report:

₋ Give the applicant/employee notice that you might use information in a consumer report to make employment-related decisions

₋ If the report will contain medical information, the notice must specifically so state and the person must specifically consent to it

₋ Get written permission₋ Certify compliance with FCRA to the third-party from which

you are getting the information, including that the applicant/employee was given notice, permission was given and the information will not be used to unlawfully discriminate or otherwise be misused

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Complying with FCRA, cont.₋ Additional considerations regarding notice:

₋ The notice may not be included as part of boilerplate language at the end of a job application

₋ It must be a separate form₋ The notice may be, however, included on the same page

as the applicant’s/employee’s written authorization₋ Written consent by e-signature?

₋ Special requirements under case law₋ It’s safer to require an original signature to be kept in the employee’s

personnel file or with the job application if not hired

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WWW.BULLARDLAW.COM

Complying with FCRA, cont.₋ Before rejecting an applicant, or reassigning,

denying promotion or terminating an employee, you must:₋ Give the applicant/employee a notice and a copy of the

consumer report relied on to make the decision – this gives the person an opportunity to review and dispute the report (this includes credit score)

₋ Provide the applicant/employee a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act” form

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Complying with FCRA, cont.₋ After taking an adverse employment action:

₋ Must put in writing that the adverse action (rejection of application/reassignment/demotion/termination) is being taken because of the consumer report

₋ Name, address and number of the consumer reporting agency₋ A statement that the consumer reporting agency didn’t make

the adverse employment decision and won’t be able to address the decision if asked

₋ A notice of the applicant’s/employee’s right to dispute the accuracy of the report, and to get an additional free report if requested within 60 days

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WWW.BULLARDLAW.COM

Best practices under FCRA₋ Retain complete documentation of every step taken

to comply with FCRA₋ Copies of correspondence/notices to applicant/employee₋ Draft a memo to the person’s file detailing the steps taken

under FCRA and why the adverse employment decision was made

₋ When you’re done with a consumer report, all paper and electronic copies must be securely disposed of

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Legal Liability for FCRA Violations₋ Civil liability

₋ Private right of action, or by the federal government₋ Statute of limitations for a civil action is the earlier of (1) 2

years after a violation is discovered; or (2) 5 years after the violation occurred

₋ Therefore, documentation should be kept for at least 5 years!

₋ Criminal liability₋ If a person knowingly and willfully obtains a consumer

report under “false pretenses”

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Contact UsEmily Q. [email protected]

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Chapter 7

Social Media and the Internet: Tools or Traps to Screen Job Applicants—Presentation Slides

JOy ellis

Garvey Schubert BarerPortland, Oregon

Chapter 7—Social Media and the Internet: Tools or Traps . . . Presentation Slides




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SOCIAL MEDIA AND THE INTERNET:Tools or Traps to Screen Job Applicants

Joy EllisApril 2, 2015

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SOCIAL MEDIA: USER-GENERATED CONTENT

• Blogs• Social networking • Video sharing



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LET’S SEE A SHOW OF HANDS:

• SHOULD YOU BASE HIRING DECISIONS ON INFORMATION OBTAINED FROM SOCIAL MEDIA?

• HAVE YOU EVER OBTAINED INFORMATION FROM SOCIAL MEDIA DURING THE HIRING PROCESS?

• HAVE YOU EVER REJECTED A JOB APPLICANT BASED ON INFORMATION OBTAINED FROM SOCIAL MEDIA?

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WHY LOOK AT SOCIAL MEDIA PROFILES?

• More information / “real” picture of your applicant helps you know who would / would not the best pick:– Scantily-clad or otherwise inappropriate pix – Rants against former employer– Pix of boozing it up– Other signs of poor judgment

• All legal to consider…



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THE BENEFITS OF SCREENING SOCIAL MEDIA

• You can assess if the applicant is a good “culture fit.”

• A social media presence can demonstrate a deeper interest in the job the applicant is pursuing.

• If familiarity with social media is needed for the job, you now have a portfolio made by the applicant.

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WHY NOT LOOK AT SOCIAL MEDIA PROFILES?

• #1 REASON: THE LEGAL RISK– You can discover information about protected characteristics.– Even if you do not consider this information as part of the hiring

process, it can be difficult to prove that you did not do so.

• OTHER REASONS: – It feels nosy and not ethical;– The information on-line is not reliable or verifiable;– The information is not job-related and not relevant.



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PROTECTED CHARACTERISTICS

• Title VII of the Civil Rights Act of 1964: – Race, color, religion, sex, national origin

• ORS 659A:– Sexual orientation, gender identity or expression – Veteran status, marital status, injured workers– Exercising civil rights

• Age Discrimination in Employment Act (ADEA)– 40 years of age or older– Oregon law: 18 years of age or older

• Americans With Disabilities Act (ADA)

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PROTECTED CHARACTERISTICS, ctd.

• Employers cannot lawfully consider any protected information in the hiring process.

• If protected characteristics are taken into account in the hiring process, it can lead to a discrimination lawsuit. Examples:

• Blog about living with MS and its unpredictable ups and down;

• Tweets about a harassment lawsuit against past employer;

• Pix of applicant with a cane;• Listed on applicant’s Amazon booklist:

What to Expect When You’re Expecting



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LAWS THAT APPLY TO SOCIAL MEDIA IN HIRING

• In Washington, Oregon, and California, employers are prohibited from requiring an employee or applicant to provide the employer access to his or her private social media account.

• Other states with some sort of login/password ban:Arkansas, Colorado, Illinois, Louisiana, Maryland, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Utah, Tennessee, Vermont, Wisconsin

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BAN ON COMPELLING THE LOGIN/PASSWORD

Specifically, an employer may not request, require, or coerce a current employee or applicant into doing any of the following:• Giving the employer the login information to a private social media account;

• “Friending” a manager/other person so the employer can view the individual’s account;

• Changing his or her privacy settings to make the account publicly available; or

• Logging into the account in the employer’s presence to enable the employer to view the content (a.k.a. “shoulder surfing”).



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BEST PRACTICES IF YOU USE SOCIAL MEDIA TO SCREEN YOUR APPLICANTS

• Consider having a policy for use of social media for screening.

• Never ask for passwords or sneak around a privacy wall.

• Be aware that other laws may apply.

• Be consistent.

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BEST PRACTICES IF YOU USE SOCIAL MEDIA TO SCREEN YOUR APPLICANTS, ctd.

• Do your sleuthing after the job interview.• Have HR, not a direct manager, look at the social media.• Alternatively, hire a company to screen applicants’ social

media and scrub information related to any protected classes.

Consider this: Not this:



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BEST PRACTICES IF YOU USE SOCIAL MEDIA TO SCREEN YOUR APPLICANTS, ctd.

• Document your decisions: print out the social media if you rely on it to reject an applicant. Keep copies of the sites you visit.

• Give the applicant an opportunity to explain the information if you plan to rely on it to reject the applicant.

• Treat the information (the good, bad, and the ugly) as if it had come up in the job interview.

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QUESTIONS?

Joy EllisGarvey Schubert Barer

Today’s presentation is for informational purposes only and not for the purpose of providing legal advice.

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