View
0
Download
0
Category
Preview:
Citation preview
Avoid the Applicant
Ambush:
Mastering the Legalities
of the Pre-Hire Process
2017 PHRA Employment Law Day
Mario R. Bordogna, Esquire
Clark Hill, PLC
@EmpLawCounsel
clarkhill.com
2
ROADMAP
1) HIRING GOALS
2) ADVERTISEMENTS AND APPLICATIONS
3) INTERVIEWING
4) PRE-OFFER CONSIDERATIONS
5) BACKGROUND CHECKS
6) SOCIAL MEDIA
7) MAKING OFFERS
8) FINAL THOUGHTS
HIRING GOALS
clarkhill.com
4
HIRING GOALS
Identify, recruit and retain quality
employees
Avoid liability to candidates not hired
Avoid negligent hiring claims
Avoid getting more than you bargained
for
ADVERTISEMENTS &
APPLICATIONS
clarkhill.com
6
ADVERTISEMENTS
Forms vary, but key legal elements are:
EEO statement
No mention of gender, age, religion, etc.
Avoid ‘recent graduate
BFOQ
clarkhill.com
7
APPLICATIONS
Things your application MUST say:
At-will employment
EEO employer
Application is no contract or offer
Falsification/omissions may lead to
dismissal/refusal to hire
clarkhill.com
8
APPLICATIONS
Things your application MAY say:
Education
Work History
References
clarkhill.com
9
APPLICATIONS
Things your application CANNOT say:
Include a photograph
Requesting age, race, disability info, etc.
Are you married/do you have children?
Are you in the military?
Are you pregnant/do you plan a family?
clarkhill.com
10
APPLICATIONS
Things your application CANNOT say:
Do you have a medical condition?
When did you attend school?
Are you using prescription medication?
Are you receiving medical treatment?
clarkhill.com
11
APPLICATIONS
Things your application CANNOT say:
What’s your citizenship?
Have you been arrested before?
Do you have a religious affiliation?
clarkhill.com
12
APPLICATIONS
Ban-The-Box
Have you ever been convicted of a crime?
2012 EEOC guidance on disparate impact
Blanket rules, relatedness, and
temporal connection
Opportunity for rebuttal?
clarkhill.com
13
APPLICATIONS
Ban-The-Box
Awareness of state/local bans
PA Criminal History Record Info Act
PA State HR ‘Fair Chance Hiring
policy’ for non-civil service jobs
under governor jurisdiction
Pittsburgh (City employment)
clarkhill.com
14
APPLICATIONS
Ban-The-Box
All about timing
Removal from application?
Defer inquiry to post-offer?
Picking your poison?
INTERVIEWING
clarkhill.com
16
clarkhill.com
17
clarkhill.com
18
INTERVIEWS
The process
Focus on the job applied for
Volunteering prohibited information
Avoid small talk
clarkhill.com
19
INTERVIEWS
Accommodations
For the interview
For the job itself
EEOC v. Abercrombie
Religion/disability
When the candidate opens the door
PRE-OFFER
CONSIDERATIONS
clarkhill.com
21
PRE-OFFER CONSIDERATIONS
Questions
disability related questions/exams
Performing specific job functions
Demonstrations
clarkhill.com
22
PRE-OFFER CONSIDERATIONS
Questions
Meeting attendance requirements
Current illegal drug use v. past
use/prescription use
Workers’ compensation history
BACKGROUND CHECKS
clarkhill.com
24
BACKGROUND CHECKS
Importance
SHRM: Employers suffer $4 billion in
embezzlement losses annually
Avg workplace violence lawsuit award in
excess of $1 million
SHRM: Almost 50% of resumes contain
material fabrications on experience,
education, qualifications, etc.
clarkhill.com
25
BACKGROUND CHECKS
FCRA: An Introduction
Enforced by the FTC
Applies to use of ‘consumer records’
from ‘consumer reporting agencies’
Driver record, investigative report
Any info bearing on character or
reputation used in establishing
employment eligibility
clarkhill.com
26
BACKGROUND CHECKS
FCRA: The Substance
Written notice to applicant that you may
use consumer records in assessing them
Independent, written authorization to do
so required
clarkhill.com
27
BACKGROUND CHECKS
FCRA: The Substance
Pre-Adverse Action Disclosure
Written notice with record/summary
of rights in advance of denying
candidacy
Adverse Action Disclosure
Written notice of decision, who
provided record, & how to dispute
with that agency
clarkhill.com
28
BACKGROUND CHECKS
FCRA: The Danger
No-fault statute
Violations often systemic
Class/collective actions
Available damages include punitives
and attorney fees
clarkhill.com
29
BACKGROUND CHECKS
FCRA: It Gets Worse
Expanding definitions of “consumer
reporting agency” and “consumer
report”
App inclusion
Companies which compile information
and require account membership/log
in for access
clarkhill.com
30
BACKGROUND CHECKS
A note about using third parties
Insurance and indemnification
Require adherence to all privacy laws
Remind them that you forbid
discrimination in hiring
Include in Contract!
SOCIAL MEDIA
clarkhill.com
32
SOCIAL MEDIA
Should you use it in hiring?
clarkhill.com
33
SOCIAL MEDIA
Things to keep in mind
Remember what youDON’Twant to know
Consistency
Use a third person/party
Guidelines
Sources and type of info
Relation and explanation
clarkhill.com
34
SOCIAL MEDIA
Timing is everything
clarkhill.com
35
SOCIAL MEDIA
One more thing
Varying state laws prohibit employer
access of social media log-in information
PA isn’t one, but…
Is it really a good idea anyway?
MAKING OFFERS
clarkhill.com
37
MAKING OFFERS
Conditionality
After conditional offer, employers may:
Ask disability-related questions or
require medical examinations
Ask about WC history, BUT…
Ask if reasonable accommodation
needed to perform essential job
functions, BUT…
clarkhill.com
38
MAKING OFFERS
Details
Do it in writing, and include:
Salary/benefits
Terms/conditions
Title
Supervisor
Introductory?
FINAL THOUGHTS
clarkhill.com
40
FINAL THOUGHTS
Personality testing
Big data/analytics: disparate impact?
Hiring software/inputs
More commonality = class actions
Randomizer: Don’t consider all
candidates
Algorithm mix: changes/job specific
Recommended