Transcript Slide 1

PACAH
SPRING CONFERENCE
APRIL 29, 2015
WHERE’D WE GET THAT
GUY? LEGAL ISSUES IN
HIRING.
Presented by:
Michael McAuliffe Miller
[email protected]
717.237.7174
and
Kevin M. Skjoldal
[email protected]
717.237.6039
*No statements made in this seminar or in the written materials/PowerPoint
should be construed as legal advice pertaining to specific factual situations.
Where’d we get that guy?
HIRING
2
OVERVIEW
• Legally effective personnel practices begin
with the hiring process.
• All employers must treat the hiring process as
a very serious part of their business and must
give the hiring and selection process the time
and attention to detail that are required.
3
OVERVIEW
• Federal, state and local rules have created zones
of concern that must be respected by employers in
the hiring and selection process.
• Zones of concern focus on:
 Discrimination
 Privacy
issues
issues
• Burden is on the employer to justify the need for
the information you are requesting from the
applicant.
4
OVERVIEW
• Discrimination issues zones of concern:

The applicant's membership in a protected
class (e.g. race, sex, age, religion, national
origin or disability status).

No inquiries designed to solicit such
information.
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OVERVIEW
• Privacy issues zones of concern:
 Applicants
do have an expectation of privacy
concerning the use and dissemination of information
obtained in the selection process -- Need to Know.
 Likewise,
certain inquiries are prohibited because of
an applicant's legitimate expectation of privacy in
his/her personal information.
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KEY POINTS TO ALWAYS
REMEMBER
• Every question asked or piece of information gathered
should relate to job qualifications and have some
demonstrable relevance to the employment decision.
• If the information is not likely to help in assessing the
applicant's qualifications, DON'T ASK FOR IT.
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KEY POINTS TO ALWAYS
REMEMBER
• All information obtained from an applicant should
only be disseminated on a need-to-know basis.
• When recruiting and advertising for positions, be
careful what you write. Avoid direct or indirect
references to age, race, sex, etc. Describe the relevant
job requirements (education, skills, experience, etc.).
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KEY POINTS TO ALWAYS
REMEMBER
• Remember, the interview is serious business
and a critical aspect of the hiring process.
• An improperly conducted interview can be the
basis of an intentional discrimination claim
(disparate treatment) or it can be the basis for a
disparate impact claim -- the interview can be
the selection technique which
disproportionately screens out minorities or
females.
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PRACTICAL SUGGESTIONS FOR
INTERVIEWS
• Review the applicant's resume thoroughly. Be aware
of gaps in employment.
• Do not write on or in any way mark-up the applicant's
resume or the application itself. Keep notes on a
separate sheet of paper. Avoid extraneous comments
(e.g., lacks energy; child care issues).
• Make no promises (e.g., you will love it here; our
employees work here forever).
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PRACTICAL SUGGESTIONS FOR
INTERVIEWS
• Utilize written job descriptions (which, hopefully,
have been revised, are accurate and are up-to-date) as
a guide for keeping the interview focused on jobrelated issues.
• Ask open-ended questions which encourage the
applicant to provide information and talk. (What
do/did you like or dislike about your current or
former position?)
• Avoid becoming too chatty or friendly.
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PRACTICAL SUGGESTIONS FOR
INTERVIEWS
• Have a plan and perhaps a script.
• Make the interviewees talk.
• Use behavior based inquiries:
 When
 Give
have you_____?
me an example when you _____?
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A SIDE NOTE ABOUT JOB
DESCRIPTIONS
• Job descriptions need not cover every possible
credential in a job description.
• Hiring applicants who have additional relevant skills
that are not listed in the job description is not
discrimination as to other applicant.
• The best comparison of employees is how they meet
and exceed the job description, not each other.
13
A SIDE NOTE ABOUT JOB
DESCRIPTIONS
• Have you captured the physical and technological
portions of the job?
• For supervisory job descriptions, the emphasis should
be on personnel management and communication
skills, including written communication skills.
• If meeting and communicating with the public is
required, do not forget public presentation skills.
14
Bona Fide Occupational
Qualification (“BFOQ”)
• A BFOQ is a qualification reasonably necessary for
an individual to possess in order for that individual to
perform the essential functions of the job (e.g., ability
to lift a certain weight).
• Permits employers to consider membership in a
protected class as a plus or a minus depending on the
circumstances.
• Burden is on the employer to establish the basis for
the BFOQ. Courts will review closely.
15
APPLICATION FORMS
• Better to use vetted application forms rather than
compare resumes.
• Critical that application forms solicit only job-related
information.
• Periodically review and update the application forms.
• Implement a policy limiting the duration that an
application remains active.
• Require the applicant to certify that all information on
the application is accurate.
• Be careful with unsolicited resumes and walk-in
applications.
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TESTING
• The law permits employers to use employment tests.
• Must be job-related (or measure necessary performance
indicators).
• Must not present adverse impact issues (screen out a
disproportionate number of members of a protected class).
• Ask questions before adopting any test in the selection
process.

Does the test measure or predict job performance?

Does the test measure significant duties or responsibilities (or the skills
necessary to accomplish the tasks)?

Gender bias in physical fitness testing.
17
What Is Disparate Impact,
Anyways?
• A facially neutral employment selection technique which
disproportionally disadvantages a protected group.
• Defensible if job related and consistent with business
necessity.
• Even if necessary, a question remains as to whether the
employer is using the least discriminatory alternative
available.
• All applicants must take the same test.
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Bargaining Over Testing
• Generally, job requirements for a position do not need
to be bargained. Harrison Township Water Authority,
29 PPER 29020 (1997).
• You may have an impact bargaining requirement if
the union asks for it. Hamburg Police Officers Assoc.
v. Borough of Hamburg, 37 PPER 121 (2006).
• Managerial standards are not bargainable because
they are an inherent managerial prerogative.
19
Background Checks
• Consent.
• Release of liability.
• Pennsylvania privilege to provide job references in
good faith.
• Fair Credit Reporting Act (if third-parties involved).
20
Prior Arrests / Convictions
• Can never rely upon arrests as a reason to say no to
an applicant. 18 Pa. Cons. Stat. § 9125.
• Can refuse to hire if based upon a conviction.

Must be a felony or a misdemeanor.

Must relate to suitability for employment.

Must advise applicant that conviction played a role in
decision.
• Special Employer requirements.
21
The EEOC’s Position
The EEOC recognizes that employers have legitimate reasons to conduct
criminal background checks and that Title VII of the Civil Rights Act of
1964 (Title VII) does not specifically prohibit or give instructions on how
an employer can utilize criminal background records.
However, the EEOC has concluded that racial minorities are
disproportionately convicted of crimes compared to non-minorities.
In 2012, the EEOC released extensive updated Guidance on how
employers are to use criminal conviction and arrest records in order to
comply with Title VII. The EEOC’s Guidance makes clear that the EEOC
will not look favorably on across-the-board criminal background
exclusions.
22
The EEOC’s Position
While the EEOC takes the view that criminal background checks will
almost always have a disparate impact against African-Americans or
Hispanics, the Commission provides two avenues for employers to
defend such usage:
Formal Validation
The first route is for an employer to formally validate the job-related
business justifications for using such a practice. Because such formal
validation studies require the use of industrial and organizational
psychologists and are generally costly, and because of lack of precedent
in validating the use of criminal background information, formal
validation is not currently viewed as a viable option for employers.
23
The EEOC’s Position
Targeted Screen
The EEOC’s alternative route to justify the use of criminal background
information requires an employer to conduct a targeted criminal
background screen and engage in an individualized assessment of persons
with criminal background records.
The targeted screen of individuals with criminal records involves looking at
three factors, referred to as the Green factors: 1) the nature and gravity of
the offense or conduct; 2) the time that has passed since the offense or
conduct or completion of a criminal sentence; and 3) the nature of the job
currently held or sought. Green v. Missouri Pac. Railroad, 523 F.2d 1290
(8th Cir. 1975).
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The EEOC’s Position
Individualized Assessment
The EEOC’s Guidance strongly recommends
that employers conduct an individualized
assessment following the targeted screen with
the goal of providing a person with a criminal
record the opportunity to demonstrate that the
employer’s targeted screen (i.e., exclusion)
should not apply to him.
25
The EEOC’s Position
The Guidance lists eight possible topics of consideration as part of an
individualized assessment, including these three:
The facts and circumstances surrounding the offense or conduct;
Evidence that the individual performed the same type of work, postconviction, with the same or a different employer, with no known incidents
of criminal conduct; and
Employment or character references and other information regarding the
individual’s fitness for the particular position.
26
Drug Testing / Medical
Examinations
• Can test for illegal substances prior to an offer
being made.
• Can require pre-employment physical
examination after an offer of employment is
made.
27
Drug Testing / Medical
Examinations
• Avoiding “regarded as” claims against
applicants with known or perceived
disabilities.
• Past drug/alcohol use and the ADA.
• Lawfully prescribed drugs in drug testing.
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Drug Testing / Medical
Examinations
• Employers may inquire into present illegal
drug use and prior casual drug use (Have you
ever used illegal drugs?) but cannot ask about
past addictions because treatment for
recovering addicts are covered by the ADA.
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Drug Testing / Medical
Examinations
• Employers may not administer an alcohol test
to applicant but may inquire about past alcohol
use so long as employer again does not ask
about past addictions because treatment for
recovering addicts are covered by the ADA.
30
Drug Testing / Medical
Examinations
• Can an applicant be tested post-offer? Does
that change anything?
• Can someone refuse a test at the post offer
stage without consequences?
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Hypothetical No. 1
• A manager interviews an applicant. His
credentials are stellar. Only one problem — he
hates him. He finds him obnoxious and
arrogant. Can he reject him on this basis?
32
Hypothetical No. 2
• A manager interviews an applicant. He
satisfies all of the technical and educational
requirements for the job. However, he has
trouble speaking English. Indeed, the manager
has trouble understanding him and he appears
to be having trouble understanding the
manager. Can the manager deny him the job
based on this communication problem?
33
Hypothetical No. 3
• Two applicants apply for the same job. Both
applicants satisfy all the minimum
requirements for the job. In fact, one appears
overqualified. Previously, he was a mid-level
manager. The position for which he currently
is applying is an entry-level supervisory
position. Can the manager lawfully consider
his "overqualification?"
34
Hypothetical No. 4
• The hiring manager has narrowed the field of
contenders to two applicants. Both meet the
minimum requirements of the job. Both
appear equally qualified. One is a woman of
color. The other is a white man. Can the
manager pick the woman of color over the
white man where both are equally qualified in
order to satisfy diversity goals?
35
Hypothetical No. 5
• During an interview, an applicant discloses
that he lost his last job because of misconduct
due to active alcoholism. However, he assures
the manager that he is in recovery now and has
been sober for more than nine months. Is his
alcoholism, albeit inactive, relevant to his
application for employment? Would the
answer be different if he disclosed he recently
had chemotherapy?
36
Hypothetical No. 6
The job description indicates that an
applicant must have a minimum of six years
prior supervisory experience. One applicant
has seven years. The other applicant has
eleven years. The applicant with seven years
is selected. Any legal problem?
37
Hypothetical No. 7
• The job description requires that the successful
applicant have a college degree. Joe does not
have a college degree; therefore, he is denied
an interview. Joe argues that a college degree
is not necessary. He also argues that his
experience is the equivalent of having a
college degree, and therefore, his application
should be considered. Must it be considered?
Can it be considered?
38
Hypothetical No. 8
• Jane arrives for her interview for the receptionist
position wearing a tank top and torn jeans. When you
sit down to conduct the interview, you begin to notice
that her body odor is offensive. Can you consider her
dress and poor smell when deciding whether to hire
her? What if Jane had a nose ring? Or dreadlocks?
Could we consider? Is it lawful to tell Jane that if she
is hired, she must remove the nose ring and change
her hair?
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Thank You!
Eckert Seamans Cherin & Mellott, LLC
•
•
Michael McAuliffe Miller
[email protected]
717.237.7174
40
Kevin M. Skjoldal
[email protected]
717.237.6039