Transcript How Legislative Development and the Upcoming Fall

THE TOP 10 MISTAKES IN HIRING
PROGRAM 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
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Lean Six Sigma Process Orientation
International Organization for Standardization (ISO) Certification 9001:2000
Safe Harbor Certified
HR-XML Certified
The Sterling Difference
Experience & Solid Track
Record
Recognition / Awards
• INC 5000- Fastest growing
companies 2007 and 2008
• Amongst the largest privately-held
company in the industry
• InfoWorld- Top 10 of 100 Best IT
Projects of 2007
• Same ownership since inception
• Deloitte & Touche USA LLPTechnology FAST 500- Fastest
growing technology Companies in
North America
• 33 out of 34 years of continuous
organic growth
• 96% client retention rate
• Ernst & Young- Entrepreneur of the
year- CEO William Greenblatt- 2006
Customized Solutions
“High-Touch” Relationship Model
• Industry specific solutions, e.g. contractor management
intelligence
• Committed service representatives for program oversight
• Tailored adjudication protocols to decrease time to hire
• Lean six-sigma consultants for continued process
improvement
• Customized reporting and notifications allowing management
to make accurate hiring decisions; customized invoicing options
• Unique Sterling Client codes for automated telephonic
routing
• Real time data regarding response time, abandon rate and
first contact resolution
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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 Resolution
Class Action and Complex Litigation
Corporate Governance and Internal
Investigations
Disability Leave and Health Management
Drug Testing and Substance Abuse
Management
Immigration
International Employment
Issues
Labor Relations, including
Preventive Practices
Management Training, including
E-Based Training
Public Sector
Reductions in Force and WARN
Employee Benefits Counseling, Executive
Compensation, Benefits Litigation and
Workplace Privacy
Trade Secrets, Non-Competes
and Workplace Technology
Employment Litigation and E-Discovery
Workplace Safety Compliance
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Wage and Hour Compliance
Industries Represented
Jackson Lewis represents a wide range of companies in
a variety of industries including, but not limited to:
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• Automotive
• Hospitality
• Banking
• Insurance
• Construction
• Manufacturing
• Education
• Non-profit
• Energy
• Pharmaceuticals
• Financial Services
• Real Estate
• Government
• Retail
• Healthcare
• Transportation
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
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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
DON’Ts (cont’d)
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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
DON’Ts (cont’d)
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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
DON’Ts (cont’d)
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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
Don’t Forget Applicant Tracking Requirements If
Applicable
 Federal Contractors Must Ensure They Obtain Applicant SelfIdentification 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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Keys to Effective and Appropriate Interviewing:
Review application prior to interview for holes and areas
of specific focus.
Be sure all questions are job-related.
applicant’s experience, skills, abilities
performance.
Treat all applicants the same.
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Ask about
and past
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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Do’s and Don’ts: Improper Questions Can
Lead to Liability
 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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Do’s and Don’ts: Improper Questions Can
Lead to Liability
 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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Do’s and Don’ts: Improper Questions Can
Lead to Liability
 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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Do’s and Don’ts: Improper Questions Can
Lead to Liability
 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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Do’s and Don’ts: Improper Questions Can
Lead to Liability
 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’s and Don’ts: Improper Questions Can
Lead to Liability
 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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Do’s and Don’ts: Improper Questions Can
Lead to Liability
 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
requirements.
to
satisfy
state
 Reference other relevant documents.
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new
hire
notification
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
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Civil Penalties And Imprisonment For Violations
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Inspections For Compliance
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Keep Them!
I-9 Forms
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Do NOT Require More Forms Than Required By I-9
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Do NOT Reject Documents Which Are “On Their Face
Genuine”  Unfair Immigration Practice
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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
I-9 Forms
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Employer Is Not Required to Make Copies Of
Documents For Part 2
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But, Retaining Copies Tends To Negate Inference
That Documents Were Obvious Forgeries and
Permits Errors to Be Remedied During An Audit
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.
SEE YOU IN JUNE…
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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?
 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/
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