the top 10 mistakes in hiring program 1 of the sterling/jackson lewis 2010 complimentary webinar...

THE TOP 10 MISTAKES IN HIRINGPROGRAM 1 OF THE STERLING/JACKSON LEWIS 2010 COMPLIMENTARY

WEBINAR SERIES

March 23, 2010

Presented By:

Todd H. Girshon, Esq.Richard I. Greenberg, Esq.

About Sterling Infosystems, Inc. Established in 1975

New York HQ; Offices in the USA coast-to-coast; Mumbai, India 500+ Employees, including a global network of researchers and verifiers

Provides over 8,500 clients with employment-related background screening, recruiting and talent management services and, through its Bishops Services subsidiary, corporate due diligence and background investigations for senior executive and Board appointees

Standards of Excellence Lean Six Sigma Process Orientation International Organization for Standardization (ISO) Certification 9001:2000 Safe Harbor Certified HR-XML Certified

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The Sterling Difference

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Experience & Solid Track Record•Amongst the largest privately-held company in the industry

•Same ownership since inception

•33 out of 34 years of continuous organic growth

• 96% client retention rate

“High-Touch” Relationship Model•Committed service representatives for program oversight

•Lean six-sigma consultants for continued process improvement

•Unique Sterling Client codes for automated telephonic routing

•Real time data regarding response time, abandon rate and first contact resolution

Recognition / Awards•INC 5000- Fastest growing companies 2007 and 2008

•InfoWorld- Top 10 of 100 Best IT Projects of 2007

•Deloitte & Touche USA LLP- Technology FAST 500- Fastest growing technology Companies in North America

•Ernst & Young- Entrepreneur of the year- CEO William Greenblatt- 2006

Customized Solutions•Industry specific solutions, e.g. contractor management intelligence

•Tailored adjudication protocols to decrease time to hire

•Customized reporting and notifications allowing management to make accurate hiring decisions; customized invoicing options

About Jackson Lewis LLP

Represents management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation

Over 50 years of experience; founded in 1958 in New York City

More than 600 attorneys in 45 offices nationwide

National perspective and sensitivity to the nuances of regional business environments

Represents over 13,000 clients in every state in the U.S.

In the last five years, the firm has litigated more than 9,000 employment law cases

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Strategically Located Throughout the Nation to Serve Employer’s Needs

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Practice Areas

Affirmative Action / OFCCP Diversity Planning

Alternative Dispute ResolutionClass Action and Complex LitigationCorporate Governance and Internal

InvestigationsDisability Leave and Health ManagementDrug Testing and Substance Abuse

ManagementEmployee Benefits Counseling, Executive

Compensation, Benefits Litigation and Workplace Privacy

Employment Litigation and E-Discovery

Immigration International Employment

IssuesLabor Relations, including

Preventive PracticesManagement Training, including

E-Based TrainingPublic SectorReductions in Force and WARNTrade Secrets, Non-Competes

and Workplace TechnologyWage and Hour ComplianceWorkplace Safety Compliance

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Industries Represented

Jackson Lewis represents a wide range of companies in a variety of industries including, but not limited to:

• Automotive

• Banking

• Construction

• Education

• Energy

• Financial Services

• Government

• Healthcare

• Hospitality

• Insurance

• Manufacturing

• Non-profit

• Pharmaceuticals

• Real Estate

• Retail

• Transportation

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Overview of Today’s Program

First Program Of This Year’s Series Focuses On Issues Relevant To Commencement of Employment Relationship

Goal Is To Provide Legal and Practical Advice

We Will Attempt To Provide Both A Preventive And A Litigation Perspective

We Look Forward To Questions

Now, On To The Top Ten Mistakes In Hiring…

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1 – Failure To Develop An Overall Strategy For The Organization’s Hiring Process

The many facets of the hiring process do not exist in a vacuum.

Do job advertisements track job descriptions?

Are all hiring managers trained on interviewing?

Is the criminal background inquiry on the employment application tied to the background check disqualification guidelines?

Are there clear non-discriminatory systems in place?

PREVENTIVE PERSPECTIVE – HELPS TO FORESEE ISSUES

LITIGATION PERSPECTIVE – INCONSISTENCIES LEAD TO PRETEXT PROBLEMS/FAILURE TO EXPLAIN BASIS FOR AN ORGANIZATION’S STRATEGIES HURTS WITNESS CREDIBILITY

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2 – Failure To Ensure Job Advertisements Are Lawful

Equal Employment Opportunity (EEO) Statement Is Key.

Unless BFOQ, No Preference For Applicants From Any Protected Classification.

If Job Duties Are Summarized, Ensure They Are Accurate And Comport With Job Description Or True Job Duties.

Don’t Mislead – No Organization Wants An Angry New Hire.

Proofread And Watch Your Wording.

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Failure To Ensure Job Advertisements Are Lawful

SCARY TANGENT – Watch For Administrative Agencies Sending Out “Testers” In Response To Job Advertisements

i.e. – Waitresses Wanted; Must Be Thin; Italians Only

QUESTION: What About Must Be Reliable?

PREVENTIVE PERSPECTIVE – HELPS TO DEFINE BUSINESS NEEDS TO INTERVIEWERS

LITIGATION PERSPECTIVE – DON’T ALLOW THE JOB ADVERTISEMENT TO BE PRIMARY OR SECONDARY EVIDENCE OF DISCRIMINATION

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3 – Failure To Ensure The Organization’s Employment Application Is Lawful

Focus Must Be On Job-Related Inquiries.

Avoid Obtaining Information Regarding Protected Classifications.

Be Careful Of State Tangents, Especially With Criminal Background Inquiries.

Strong Applicant Statement.

All Applicants Should Complete Application -- Separate Resume Is Not Enough.

Same Principles Apply To Electronic Applications.

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Job Applications: Permissible Questions

NAME

CURRENT ADDRESS

WORK WEEKENDS, EVENINGS, OR OVERTIME? (if the job requires it)

DOES THE APPLICANT HAVE THE LEGAL RIGHT TO WORK IN THE UNITED STATES (may ask applicant to furnish verification)

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Job Applications: Permissible Questions (cont’d)

CRIMINAL BACKGROUND – subject to state tangents

FOREIGN LANGUAGE ABILITY: Ok to ask if job related

EDUCATION AND TRAINING: educational history, including schools attended and degrees obtained

WORK EXPERIENCE: work experience, former employers, reasons the applicant left employment, and pertinent skills

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Job Applications: Permissible Questions (cont’d)

Military Service: Limit questions to skills and training for the particular job applied for

Personal and Professional References

Professional or other associations that have a bearing on the job requirements

Agreement/Certification of Information: Applicant should sign and date the agreement, and certify that the information given is true and complete to the best of applicant’s knowledge

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Job Applications: DON’Ts

Do not ask for “maiden” or “unmarried” name, or title -- “Ms. Mrs. or Miss”

Protected categories (race, color, religion, ancestry, sex, pregnancy, national origin, age, disability/handicap, marital status, familial status or sexual orientation)

Do not ask whether employee rents or owns residence; length of time in residence or list of previous addresses

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DON’Ts (cont’d)

Never ask an employee’s family commitments, whether he or she has children

Do not ask whether applicant is a citizen, or applicant’s national origin or birthplace

Do not ask age or birth date, or date of high school graduation

Do not ask for social security number on employment application form itself

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DON’Ts (cont’d)

Do not ask applicants whether they have ever been arrested

Do not ask applicants’ race or color, or require a physical description or photograph

Do not ask applicant’s gender

Do not ask for “native” language or whether English is “second” language

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DON’Ts (cont’d)

Do not ask whether applicant served in another country’s military; do not ask type of discharge received, unless job-related; do not require applicants to submit their military discharge or service records prior to employment

Do not ask the applicant to list club memberships, associations or union memberships

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Don’t Forget Applicant Tracking Requirements If Applicable

Federal Contractors Must Ensure They Obtain Applicant Self-Identification Forms For Affirmative Action Program Compliance.

Detailed Analysis With Electronic Applicants.

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Failure To Ensure The Organization’s Employment Application Is Lawful

PREVENTIVE PERSPECTIVE – A RESUME IS A MANUFACTURED DOCUMENT; AN APPLICATION ALLOWS YOU TO OBTAIN VITAL INFORMATION TO HELP EVALUATE THE APPLICANT AS WELL AS TO CONDUCT THE INTERVIEW

LITIGATION PERSPECTIVE – APPLICANT MISSTATEMENTS IN LITIGATION HELP DAMAGE CREDIBILITY OF PLAINTIFFS AND MAY SUPPORT AFTER-ACQUIRED EVIDENCE AFFIRMATIVE DEFENSE/ UNLAWFUL QUERIES CAN BE EVIDENCE OF DISCRIMINATION

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4 - Failure To Ensure Interviewers Are Trained To Ask Appropriate Lawful Questions

Why do we interview? To obtain necessary information about job applicants. THE FOCUS MUST BE ON THE APPLICANT’S QUALIFICATIONS FOR THE JOB AND NOT THE APPLICANT HIMSELF/HERSELF.

General rule: limit inquiries to only those subjects necessary to evaluate the applicant’s suitability to perform his or her job.

Applicants, employees and investigatory agencies (like the EEOC) will presume that an employer uses all information it collects in making hiring decisions.

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Review application prior to interview for holes and areas of specific focus.

Be sure all questions are job-related. Ask about applicant’s experience, skills, abilities and past performance.

Treat all applicants the same.

Keys to Effective and Appropriate Interviewing:

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Do’s and Don’ts: Improper Questions Can Lead to Liability

If a job requires overtime, travel or relocation, explain what is required and ask whether the applicant can fulfill these requirements. But applicant need not advise of unavailability due to religious needs.

Focus on the substance of a candidate’s experience rather than on the number of years of experience the candidate has.

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If you ask about convictions, make clear that criminal convictions are not an absolute bar to employment but will be considered in relation to specific job requirements.

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Marriage or Family Status: Avoid questions about marital status, number of children, and child care.

Avoid questions that presume married women or people with children will be less able to work long hours. Do not request information about child care arrangements.

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Avoid questions about home life, social interests and hobbies.

Pregnancy; childbearing plans: AVOID THE SUBJECT ENTIRELY!!! Do not ask any applicant, male or female, about his or her plans to have children in the future.

Age: Do not ask questions or make any statements or references to an applicant’s age, including, date of birth or graduation dates.


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Religion: Do not ask an applicant’s religious faith, denomination or affiliation, or which church the applicant belongs to.

Personal appearance: Do not comment on an applicant’s personal appearance or dress, including, in particular, hairstyles or dress that may be associated with a particular racial or ethnic group.


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Political Affiliation: Do not ask an applicant’s political affiliation or other questions that may elicit information about the applicant’s political views.

Source of income: Do not ask an applicant whether he or she receives alimony or child support, or other questions that may elicit information about the applicant’s sources of income.


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Do not ask whether applicant is a citizen or applicant’s national origin or birthplace.

Do not ask applicants whether they have ever been arrested.

Do not ask “native” language, where or how the applicant learned the language or whether English is “second” language.


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Club Memberships, Associations, Union Memberships: only ask about professional or other associations that have a bearing on the job requirements.

Sexual orientation: Do not ask questions about sexual orientation or questions that might be interpreted as asking about sexual orientation (for example, the gender of someone’s roommate).


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Disability Tangent

Do not ask any questions regarding disability unless the individual has a clear disability such as blindness – then simply ask how the person could perform the job duties with or without a reasonable accommodation.

After conditional offer, limitations on inquiries are removed

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Failure To Ensure Interviewers Are Trained To Ask Appropriate Lawful Questions

PREVENTIVE PERSPECTIVE – USE THE OPPORTUNITY TO GET A READ ON THE APPLICANT; DOES HE/SHE LOOK YOU IN THE EYES; IS HE OR SHE EVASIVE – TRUST YOUR INSTINCTS

LITIGATION PERSPECTIVE – IMPROPER QUESTIONS REGULARLY COME UP TO SUPPORT LATER CLAIMS OF DISCRIMINATION – i.e., I WAS TERMINATED BECAUSE OF MY GENDER AND EVEN DURING MY INTERVIEW THEY ASKED ME BUT NOT MALE APPLICANTS IF I HAD CHILD CARE RESPONSIBILITIES…

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5 - Failure To Implement And Apply Consistent Lawful Background Check Processes

We cannot do a Sterling Program and not discuss background checks.

The third program of this year’s series is focused on these issues.

With that said, understand and comply with FCRA and state derivatives.

Understand what information can and cannot be used to disqualify under federal and state laws.

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Federal Fair Credit Reporting Act (“FCRA”) Consent

Pre-Adverse Action Notice

Adverse Action Notice

State Tangents

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Failure To Implement And Apply Consistent Lawful Background Check Processes

UNANSWERED QUESTION: What about social network checks?

PREVENTIVE PERSPECTIVE – TAKE ADVANTAGE OF THE OPPORTUNITY TO LEARN ABOUT YOUR POTENTIAL NEW HIRE IN A LAWFUL MANNER

LITIGATION PERSPECTIVE – AVOID NEGLIGENT HIRING CLAIMS; BEWARE OF RISING FCRA CLASS LITIGATION

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6 - Failure To Conduct Skills Tests When Appropriate.

An employer has the right to determine if someone has the basic skills to perform the job.

If it is not a medical exam, it can be pre-conditional offer.

Just ensure it is truly job-related.

PREVENTIVE PERSPECTIVE – AVOID HIRING SOMEONE WHO DOES NOT HAVE BASIC SKILLS TO SUCCEED

LITIGATION PERSPECTIVE – A FRUSTRATED NEW HIRE IS A POTENTIAL LITIGANT.

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7 - Failure To Understand Legal Issues Surrounding Medical Exams And Personality Tests

A medical exam may only be conducted post-conditional offer as the final step of the hiring process.

Any requirement must be non-discriminatory.

Ensure personality test is not a medical exam.

Ensure personality test is validated – no one size fits all approach.

Beware of state limitations.

Balance pros and cons.

Any obtained medical information must be kept confidential.

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Failure To Understand Legal Issues Surrounding Medical Exams And Personality Tests

PREVENTIVE PERSPECTIVE – THIS IS AN AREA EMPLOYERS REALLY WANT TO CONSIDER THE QUESTION OF WHETHER THE TEST OR TESTS ARE WORTH THE RISK.

LITIGATION PERSPECTIVE – SIGNIFICANT LIABILITY FOR IMPROPER MEDICAL EXAMS OR INQUIRIES. FOCUS FOR EEOC. PERSONALITY TESTS RAISE ADVERSE IMPACT CONCERNS.

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8 - Failure To Use Lawful, Protective Offer Letters

If hire is conditional on background checks or other issues, expressly state so.

At-will statement.

Potential avenue to satisfy state new hire notification requirements.

Reference other relevant documents.

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Failure To Use Lawful, Protective Offer Letters

PREVENTIVE PERSPECTIVE – VITAL TOOL TO ADVISE POTENTIAL NEW HIRE OF TERMS AND CONDITIONS OF EMPLOYMENT AND AVOID MISUNDERSRANDINGS

LITIGATION PERSPECTIVE – AN IMPORTANT AVENUE TO REITERATE AT-WILL STATUS AND AVOID CLAIMS OF IMPLIED CONTRACT.

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9 - Failure To Provide Notice Of Agreements That Must Be Signed As A Condition of Hire

Use Offer Letter to advise potential new hire if a confidentiality or restrictive covenant agreement must be signed as a condition of hire.

Same concepts apply to commission plans.

And of course ensure the agreements are legally enforceable and clear.

PREVENTIVE PERSPECTIVE – AGAIN, HELPS TO AVOID THE ANGRY NEW HIRE WHO FEELS MISLED.

LITIGATION PERSPECTIVE – PLAINTIFFS’ LAWYERS LOOK FOR ANY INCONSISTENCIES IN PAPERWORK. TIE IT ALL TOGETHER.

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10 - Failure To Implement And Apply Protocols For Employment Verification

This moves a bit into the on-boarding phase but…

Documentation for I-9’s must be presented within 72 hours of start date.

Parts of I-9 must be completed on Day 1.

Very specific rules.

Area of Government Focus.

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I-9 Forms

Civil Penalties And Imprisonment For Violations

Inspections For Compliance Keep Them!

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I-9 Forms

Do NOT Require More Forms Than Required By I-9

Do NOT Reject Documents Which Are “On Their Face Genuine” Unfair Immigration Practice

Do Not Ask For An INS Document To Confirm Expiration of Work Authorization

Do Not Consider Expiration Of Work Authorization In Making Employment Decisions

You Re Not Required To Be A Document Expert – On Its Face Genuine Standard

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I-9 Forms

Employer Is Not Required to Make Copies Of Documents For Part 2

But, Retaining Copies Tends To Negate Inference That Documents Were Obvious Forgeries and Permits Errors to Be Remedied During An Audit

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Failure To Implement And Apply Protocols For Employment Verification

PREVENTIVE PERSPECTIVE – ENSURE NEW HIRES KNOW THAT THEY MUST PRODUCE DOCUMENTS. IT DOES NOT HELP AN ORGANIZATION TO EMPLOY SOMEONE FOR 3 DAYS.

LITIGATION PERSPECTIVE – PLAINTIFFS’ LAWYERS WOULD LOVE TO PRESENT IMMIGRATION VIOLATIONS TO A JURY TO DAMAGE AN EMPLOYER’S CREDIBILITY; CIVIL AND CRIMINAL IMMIGRATION – RELATED LITIGATION IS ON THE RISE.

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FINAL POINT – Recordkeeping and Retention Ensure documents are retained for necessary federal and state

retention periods.

Ensure location and form of retention is lawful.

In general, electronic retention is permissible but security of system is key.

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WHAT’S NEXT This year’s second program will focus on the number 1 area of

liability in the employment arena – Wage and Hour Liability.

We look forward to that program and thank you for your attention today.

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SEE YOU IN JUNE…

AND OF COURSE…

THE MATERIAL CONTAINED IN THIS PRESENTATION WAS PREPARED BY THE LAW FIRM OF JACKSON LEWIS LLP FOR THE ATTENDEES’ OWN REFERENCE IN CONNECTION WITH THIS SEMINAR. SINCE THE MATERIAL AND RELATED DISCUSSIONS ARE INFORMATIONAL AND EDUCATIONAL IN NATURE AND REPRESENT THE SPEAKER’S OWN VIEWS, ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR RELATED DISCUSSIONS TO BE LEGAL OR OTHER ADVICE. PROFESSIONAL ADVICE SHOULD BE OBTAINED BEFORE ATTEMPTING TO ADDRESS ANY LEGAL SITUATION OR PROBLEM.

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Questions/Thoughts?

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If you have any questions or thoughts, please contact Sterling Infosystems, Inc. and mention this webinar. Email us at: [email protected]

To learn more about Sterling and Jackson Lewis, visit our websites: Sterling Infosystems Inc. can be found at:

http://www.sterlinginfosystems.com

Jackson Lewis, LLP can be found at:http://www.jacksonlewis.com/