Top Legal Pitfalls in the Recruiting & Onboarding Stages

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(Part 1: Pre-Employment)

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Top Legal Pitfalls Hiring Managers Make Along the Employment Lifecycle

 Sheeva J. Ghassemi-Vanni   Senior Associate   Fenwick & West   linkedin.com/in/sheevaghassemi

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q Employment lifecycle overview

q  Screening

q Interviewing

q Selection process

q Background checks

q Onboarding

Topic Overview Top Legal Pitfalls in the Recruiting and Onboarding Stages (Part 1 of 3)

Pre-employment Termination

Employment

1

2

3 Screening

Interviewing

Selection process

Background checks

Onboarding

Assessing termination risks

Performance management

Failure to performance manage

Tips and tools

Employee classification: Exempt vs. non-exempt

Worker classification: Contractor vs. employee, and interns

Performance management tips

Next Weds: Aug 5th @ 11am PT

Tues: Aug 11th @ 11am PT Today

Discrimination

Race Color

National origin

Citizenship

Ancestry

Religion

Gender Pregnancy

Sexual orientation

Disability

Age (40+)

Military service

Marital status

“Associa-tion”

Law prohibits discrimination in hiring (and other employment decisions) based on protected characteristics, including:

Tip

Can’t make decisions in the screening, interviewing, consideration, or selection process based on such characteristics

Pre-interview sources of information

Resumes / Applications •  What do they reveal / infer about protected

status?

Pre-interview sources of information

Internet / Social Media •  What are the dos and don’ts for internet

searches, especially social media? -  LinkedIn -  Facebook -  Twitter -  Etc.

•  Too much information! •  Can unwittingly learn of protected

characteristics, especially if candidate is “friends” with people in the organization

Tip

Stay focused on sites that summarize work/employment history, not personal life

Example

I was born in an Asian and hardworking family who migrated from Vietnam. It has been instilled in me to work hard and as a result, I’ve been promoted over 4 times at my current company. As a 21 year old marketing professional, I thrive in a youthful and fast-paced company. I have been recognized as a top performer for achieving record high marketing contributions, customer retention, and customer service satisfaction. Having no children, I’m able to travel at any time for business. I have received many commendations for my professionalism, dedication, and customer service excellence.

What can I ask?

•  Interviewers must not ask questions that reveal protected categories / information

•  Interviewers must be adequately trained by what they can and can’t ask during interviews

Tip

Download list of sample interview questions from LinkedIn’s Hiring Toolbox at bit.ly/SMBhiringtoolbox

What topics are safe?

•  Law prohibits any non-job-related inquiries that implicate protected status Safe topics: •  Job skills •  Experience Dangerous topics: •  Anything that could reveal protected characteristics, even if seemingly

innocuous

Can I or can’t I?

TOPIC QUESTION Age When did you graduate from college?

Marital/Family Status Are you married? Do you have children?

Residence Do you own or rent?

Arrest/Criminal Record Have you ever been arrested?

Organizations/Activities What non-professional organizations do you belong to?

Name What is your maiden name?

Birthplace/Citizenship Where were you born? Where are your parents from?

Medical Condition Are you healthy?

•  If candidate reveals information regarding protected category during interview, and company decides not to hire him/her, he/she could claim it was based on that information

•  Must be able to objectively establish a non-discriminatory basis for

decision not to make offer (typically, based on comparison against other candidates)

Tip

Steer conversation back to job-related issues if candidate begins to reveal information regarding protected category

Tips: Things to look out for

q Job hopping

q Skill set that will not likely scale as position changes

q Hesitancy in providing references

q  Inconsistencies with information shared on LinkedIn Profile, resume, and in interviews

q References from just peers vs. direct manager(s) and direct reports

•  Must comply with federal (FCRA), state, and in some cases, local (e.g., San Francisco) law

•  Engage reputable vendor

•  “Hits” must be truly job related if relied upon to make hiring decisions

•  Establish and consistently follow onboarding checklist

•  Confirm that all documents have been signed, especially offer letter, PIIAA, and handbook acknowledgement

Tip

Download LinkedIn’s Onboarding in a Box for tips, templates, and more! http://bit.ly/Onboardingtoolbox

Align with candidate •  Discuss clean exit from former employer with candidate, and clean

onboarding

Incorporate proper language in offer letter and/or PIIA •  Employment with company does not violate any obligations to prior

employers •  Employee has and will not bring over trade secrets or proprietary

information of former employers

Obligations to prior employers •  Non-competes •  Non-solicits •  Inquire before, not after, offer is made

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q Screening

q Interviewing

q Selection process

q Background checks

q Onboarding

Summary Top Legal Pitfalls in the Recruiting and Onboarding Stages (Part 1 of 3)

LinkedIn Talent Solutions offers a full suite of tools to help you find, attract, and hire top candidates. Contact us to learn more. Call

855-655-5653 or visit

linkd.in/1TMUc7Q

Fenwick & West provides comprehensive legal services to ground-breaking technology and life sciences companies at every stage of their lifecycle. We craft innovative, cost-effective and practical solutions, helping some of the world's most respected companies become and remain market leaders. Call

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Fenwick.com/employment

Disclaimers

*This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.