HIRING PRACTICES

University of California, Riverside January 16, 2013 10:00 a.m. - Noon

Presented by: Barbara J. Ginsberg, Esq.

Nida Niravanh - Moderator Director, Risk Management UC Riverside Shondella M. Reed - Panelist Counsel, Labor & Employment Office of the General Counsel Jadie Lee - Panelist Director, Labor Relations UC Riverside Copyright 2013 Cerritos • Fresno • Irvine • Riverside • Pleasanton • Sacramento • San Diego

RULE SOURCES DISCRIMINATION DISABILITIES AND REASONABLE ACCOMMODATION CONVICTIONS AND POLYGRAPHS IMMIGRATION RELATED INQUIRIES

AGENDA

• Federal, State, and Local Laws to be Aware of During the Hiring Process • Disparate Treatment; Disparate Impact; English Only/Preferred • ADA, Rehab Act of 1973, FEHA; Overview of Laws; Questions and Medical Exams • Labor Code and EEOC Guidance • Tips and Guidance 2

APPLICATION STATEMENTS INTERVIEWS

AGENDA

• What the application reveals directly or by omission • Tips to keep the interview productive and fair

BACKGROUND CHECKS

• Obtaining Info; Providing Info; Defamation

NEGLIGENT HIRING PROBATIONARY PERIOD

• Obligation and liability • Using the employee release option 3

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Hiring Practice “Rule” Sources

U.S. Constitution Federal Law

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Federal Regulations

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State Constitution

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State Law

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State Regulations

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Collective Bargaining Agreement

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University Policies and Administrative Procedures/Regs

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Past Practice 4

Important EEO Concerns when Hiring

• Discrimination against Protected Classifications – Federal: Title VII – State: Fair Employment and Housing Act (FEHA) • Disability Discrimination – Federal: Americans With Disabilities Act (ADA) and Rehab Act of 1973 – State: Fair Employment and housing Act (FEHA)

Prohibited Discrimination - Protected Characteristics Race / National Origin / Color / Ancestry Gender / Sex / Pregnancy Age Religious Creed Physical or Mental Disability / Medical Condition Sexual Orientation Gender Identity Association / Perception Marital Status / Military Status 6

Title VII and FEHA – General Discrimination

DISPARATE TREATMENT DISCRIMINATION

•

Prima Facie case:

– Protected Characteristic – Qualified Individual – Adverse Action •

Legitimate Business Reason

•

Pretext

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Title VII and FEHA – General Discrimination

DISPARATE IMPACT DISCRIMINATION

• Policy or practice neutral on its face that has a disparate impact on a protected characteristic group; and • Other non-discriminatory alternatives exist 8

May we require bilingual skills? May we prefer bilingual skills?

May we require English-only or English competence?

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Conduct Job Analysis to Determine Required or Preferred Skills

• Set minimum qualifications • If using pre-employment tests, utilize examinations that test for the applicant’s ability to perform the duties of the position • All pre-employment tests must be reviewed and validated by HR before use 10

Laws Protecting Disabled Workers

Americans with Disabilities Act – Title I (Federal)

• Prohibits employers of 15+ employees from discriminating against “qualified” individuals with disabilities • Requires reasonable accommodation for known disability of qualified applicant or employee unless undue hardship, or direct safety threat 11

Laws Protecting Disabled Workers

Americans with Disabilities Act – Title I (Federal)

• Disability = • Physical/mental impairment that “substantially limits” one or more “major life activities” as determined without regard to mitigating measures • • Record of such impairment Being regarded as having such impairment • Major life activity = • Tasks & functions of central importance to daily life • • Qualified = • Meets job requirements • Can perform essential job functions with or without reasonable accommodation • No direct threat to safety or health of self or others Essential Functions = • Position exists to perform function • Function requires expertise or specialized skill • Limited # of employees available to perform function 12

Laws Protecting Disabled Workers

• • “Reasonable” accommodation •

Americans with Disabilities Act – Title I (Federal)

Modification that would allow the employee to perform the essential functions of the job without altering the major purposes of the job • • Reasonable accommodation is not necessarily employee’s preferred accommodation, rather just an effective one Employee may reject proposed accommodation • Only must provide if “qualified” individual with known disability • Enforced by EEOC and employers directly liable for policies and vicariously liable for supervisors • Can’t impose undue hardship on the employer’s operation Employer must engage in interactive process with employee with known disability • Remedies are reasonable accommodation, reinstatement, damages (pay, future losses, pain and suffering), attorneys fees & costs 13

Laws Protecting Disabled Workers

Rehabilitation Act of 1973 (Federal)

• Covers employers with federal government contracts of $2,500 or more, or who receive financial assistance.

• Substantially similar to Americans with Disabilities Act 14

Laws Protecting Disabled Workers

Fair Employment & Housing Act (California)

• Prohibits employers with 5+ employees from discriminating against person based on physical disability, medical disability, or medical condition.

• Greater protection against discrimination than ADA • Requires reasonable accommodation of known disability or at request of employee for accommodation, unless undue hardship or would endanger health and safety of employee or others 15

Laws Protecting Disabled Workers

• • Disability =

Fair Employment and Housing Act (California)

• Qualified = • • Physical/mental disability or medical condition that “limits” (makes “difficult”) one or more “major life activities” as determined without regard to mitigating measures Mental/psych disorder/health impairment requiring special ed • • • Meets job requirements Perform duties in manner that won’t endanger to safety or health of self or others • Can perform essential job functions with or without reasonable accommodation Essential Functions = • Being regarded as having such impairment • Position exists to perform function Major life activity = • Function requires expertise or specialized skill • Physical, mental, social activities and working • Limited # of employees available to perform function 16

Laws Protecting Disabled Workers

• • “Reasonable” accommodation • Accommodation that would allow the employee to perform the essential functions of the job without altering the major purposes of the job • • • •

Fair Employment and Housing Act (California)

Can’t impose undue hardship on the employer’s operation Reasonable accommodation is not necessarily employee’s preferred accommodation Enforced by FEHC Employers directly liable supervisors/co-workers engaging in harassing or retaliatory conduct directly liable • Employer must engage in timely, good faith interactive process with employee with known disability or if employee requests accommodation Remedies are reasonable accommodation, reinstatement, hire, transfer, promotion, tenure, damages (pay, future losses, pain and suffering), attorneys fees & costs, out of pocket expenses, training 17

Questions and Medical Exams

Can I ask an applicant whether she is disabled or about the nature or severity of a disability?

Can I require an applicant to take a medical exam?

No. You may ask about ability to perform job related functions and can ask them to describe or demonstrate how the job function will be performed with or without reasonable accommodation Only after a job offer is made and prior to the commencement of duties and only if everyone working in the job category must also take the exam 18

Questions and Medical Exams

What happens if I don’t hire because the pre-employment exam shows a disability?

Once an employee is hired, can I require a medical exam or ask questions about disabilities?

You’ll need to be able to show reasons for not hiring are job-related and consistent with business necessity, and that no reasonable accommodation could have been made that would have made it possible to perform essential job functions Only if you can show the exam or inquiry is job related and consistent with business necessity (based on objective evidence) 19

Convictions

• Labor Code §432.7

– Can’t ask applicant to disclose orally or in writing information concerning an arrest/detention that did not result in conviction, or referral to or participation in a diversion program, and employer can’t factor any record of the same into an employment decision – Convicted of a felony or misdemeanor via plea, verdict, finding of guilty (don’t rely on arrest as evidence of criminal conduct, but OK to consider underlying conduct) – Include statement that a conviction does not necessarily disqualify an applicant

Convictions

• See also EEOC Guidance – Consider nature of conviction, date of conviction, age at time of conviction, and circumstances of conviction – Look at the nature of the job and determine nexus between conviction and ability to perform job • Labor Code §432.2 – No compelled polygraphs

Convictions

• Should you check the Megan’s Law website?

• Labor Code §290.46(j)(2) – OK if the information gathered is used to protect a person who “is or may be exposed to a risk of becoming a victim of a sex offense by the offender.” • Be sure to get a written waiver to conduct a DOJ criminal background check

Immigration-Related Inquiries

May I ask an applicant if, in the event he/she is hired, he/she will be able to provide verification of his/her legal right to work in the United States?

What if we become aware of the fact the employee lacks the legal right to work in the U.S.?

Yes, but you can’t require the documentation until after the applicant is hired. Be sure to specify what constitutes appropriate verification documentation You may use this as a basis for terminating employment with appropriate due process 23

Certification

Include a statement on the application wherein the applicant certifies the information provided is true and correct and that no material information has been omitted

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Look Closely at the Job Application

Job Hopping? Gaps in employment?

Inflated Position Titles? Puffery?

Actual Job Responsibilities Salary History Reporting Relationships Education Actual Experience Writing Ability

INTERVIEWS

• Complete training on recruitment and training practices • Ask Open-Ended Questions – Who, What, When, How, Why • Ask Questions About Experience and Situations • Consistent Questions for all Interviewees 26

Background Checks

Obtain a signed written waiver to make inquiries and comply with Fair Credit Reporting Act

Obtaining Information

Protect personal and confidential information Limit the number of people who conduct checks Beware of defamatory statements

Providing Information

Know who is authorized to provide information Limitations on disclosure of performance information absent a current written release Procedures for internal (UC system) requests for employee information vs. external requests Do not make defamatory statements 27

DEFAMATION

• Intentional • False Statement • Defames Individual’s Reputation • Immunity May or May Not Be Available 28

Additional Issues

NEGLIGENT HIRING

• Employer has a duty to exercise reasonable care in hiring (and retaining) employees and to avoid exposing third parties to an unreasonable risk of injury • Employer must take reasonable steps during the hiring process to satisfy this duty • Thoroughly complete all steps of hiring process (background, criminal, pre-employment tests, references, driving (if appropriate) to determine fitness for duty and whether prone to violence 29

Additional Issues

PROBATIONARY PERIOD

• If an employee is not performing to standards, release the employee during the probationary period • Ensure provisions of the CBA are followed (specific timelines; may also include remediation attempts) • Ensure adequate documentation (employee may still file action) 30

Question Session Answer

Thank You

For additional resources, training, or information, please contact: Barbara J. Ginsberg Attorney at Law (562) 653-3200 [email protected]

www.AALRR.com

Sue Anderson Staff Employment and Development Manager UCR [email protected]

hr.ucr.edu

Lorena Velasquez Principal Employment Analyst, UCR [email protected]

hr.ucr.edu