Hiring Right: Interviewing and Background Checks

Hiring Right: Interviewing and Background Checks

August 27, 2015

Brought to you by Winston & Strawn’s

Labor and Employment Practice

Today’s eLunch Presenters

Monique Ngo-Bonnici Partner

Los Angeles

[email protected]

(213) 615-1808

Jason Campbell Associate

Los Angeles

[email protected]

(213) 615-1752

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mailto:[email protected]


Hiring Right

The Most Important Decision About An Employee Is Often A Company’s First

Decision

• “Shoot from the hip” interviewing and hiring can lead to:

• Unqualified Employees • Poor Fit

• Problem Employees

• Unnecessary Lawsuits • Discrimination

• Negligent Hiring

• FCRA and Other Background Check Law Violations

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Is There Really Litigation Surrounding Hiring? Discrimination In Hiring

• Commission on Human Rights v. Shalom Bombay 2, LLC

• NYC restaurant fined $5k for Craigslist ad seeking “Experienced Indian Waiter or Waitress”

• E.E.O.C. v. Celadon Trucking Services

• Trucking company settles with EEOC for $200k after 23 applicants claimed Celadon’s medical inquiries and examinations violated the ADA

• Nebraska Beef

• Company settles with Justice Department for $200k and federal monitoring because it required non-citizen employees to provide proof of immigration status

Negligent Hiring/Retention

• Doe v. Capital Cities

• California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee

• Philips v. TLC Plumbing, Inc.

• “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes’”

Vicarious Liability For Employee Misconduct

• Lisa M. v. Henry Mayo Newhall Memorial Hospital

• Employer vicariously liable for an employee's willful, malicious and even criminal torts that fall within the scope of his or her employment, even though the employer has not authorized the employee to commit crimes or intentional torts.

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Interviewing & Hiring

• What is your goal? • Know the requirements for the job you are hiring for

• Find applicants with the skills and experience needed for the job

• Make decisions based on permissible inquiries

• Protect the organization from liability

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Job Descriptions

• Know the position before you know the candidates • Define position expectations and responsibilities

• What is the position called?

• How will you compensate the employee? Exempt/non-exempt?

• What will the employee do? • Essential job functions

• How will the company measure performance?

• Distribute job descriptions to your interviewers

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Finding Applicants

• Recruiting software helps sift candidates • Allows categorical exclusions

• Demographic statistics may show disparate impact

• Use a randomizer to limit consideration pool

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Employment Applications

• Seek background information about the applicant • Can protect you • Applications should include:

• Authorization to check all references

• Acknowledgment that all answers given by the applicant are true

• Statement that if hired, employment will be at-will

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The Interview: What to Ask

• Use pre-written questions

• Write down the responses to questions

• Ask why the candidate left or is leaving prior job

• Ask only job-related questions (job qualifications)

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The Interview: What NOT to Ask

• Avoid asking questions related to protected categories

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All States Race Color Sex Religion National Origin Ancestry Age (40 and over) Disability

California Additions Genetic Information Marital Status Medical Condition Gender Gender Identity Gender Expression Sexual Orientation

The Interview: Unlawful Questions

• EEOC and ADA Guidelines • Age

• Arrests

• Minor Marijuana Convictions Over 2 Years Old

• Birthplace

• Citizenship (except for companies requiring national security clearances)

• Color

• Dates Of School Attendance

• Height

• Weight

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The Interview: Unlawful Questions

• EEOC and ADA Guidelines (cont’d) • Maiden Name

• Marital Status

• Military Status

• Name And Address Of Nearest Relative

• Name Change

• Native Language

• Race

• Sex

• Social Or Religious Organizations

• Weight

• Physical Or Mental Disability

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The Interview: Sample Bad Questions

• Are you a member of any clubs and organizations? • Are you single?

• How old are your children?

• Where are you from?

• Is that a Chinese (or Irish, French, etc.) name?

• What is your native language?

• Instead, if relevant to the essential job functions, ask: What language(s) do

you have fluency in reading, writing, and speaking?

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The Interview: Questions You May Ask

• Are you willing and able to travel? • Why did you apply for this job? • Is there anything that might make you leave this job? • Why are you leaving your current job? • What qualifications do you possess for this job? • If you are hired, can you verify eligibility to work in the US?

• If you ask this, you must ask it to all candidates, not just some candidates

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• Don’t make promises you can’t keep • If it were up to me, you will have the

job.

• You will have a job here as long as you do a good job.

• We give raises every year.

• You’ll make more money here.

The Interview: What Not to Say

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The Interview: Note-Taking

• Writing on an application, cover letter, or resume is necessary to remember which candidates are good and which are bad, but they can subject employers to discrimination claims • Notes are often taken out of context

• Notes should objectively record why a candidate did not fit what the company is looking for • Example: candidate for retail job working on Rodeo Drive

• “Not fit for the job” is a subjective opinion

• “Refused to work evenings” is an objective fact tied to job requirements

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Testing • Tests can screen out candidates that are not qualified for a

position • Tests cannot screen out a protected class of individuals, even

inadvertently • Tests must be:

• Job-Related

• Consistent with Business Necessity

• E.E.O.C. v. Target Corp. • Retailer agreed to pay $2.8MM to 3,000 class members after facially-neutral

tests disproportionately screened out African Americans, Asians, and women

• In California, employers cannot charge employment candidates for the cost of tests

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Using Social Media in Hiring Decisions

Using Social Media

• Jobvite: 52% of recruiters search for online profiles • 55% have reconsidered candidates based on online profiles

• More than 2/3 of states have passed or considered laws that prohibit employers from requesting or requiring access to password-protected social media sites

• Social-media aggregators (Spokeo, Intellius, Pipl) can be considered background checks

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Using Social Media: Do’s and Don’ts

• DO: • Establish procedures for making social media based employment decisions

(if you decide to use social media) • Uniformity: perform the same searches of every candidate at the same juncture in

the hiring process

• Carefully consider what sites have information you think is relevant, and don’t look at others

• Redact all information that cannot be considered in the hiring process

• Separate decision makers from reviewing

• Require all job applicants authorize you to perform a social media background check as part of the hiring process and throughout his/her employment

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Using Social Media: Do’s and Don’ts

• DON’T: • Have the hiring team perform the social media search

• Assume your managers are not using social media to screen applicants or employees

• Make employment decisions based on an employee’s off-duty, lawful conduct, or organizing involvement

• Forget to keep consistent records of data reviewed and make uniform hiring decisions based on social media research

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Tips For Avoiding Background Check Liability


Treat Everyone Equally

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When conducting a background check, federal and state law must be complied with.

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Employers are required to provide certain notice to applicants when conducting a

background check

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California employers can only conduct credit checks (which are different from background

checks) for certain types of employees.

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Even if conducting a background check in-

house, if an employer searches public records, these records must be disclosed to the

employee within seven days.

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Thank You.

Monique Ngo-Bonnici Partner

Los Angeles

[email protected]

(213) 615-1808

Jason Campbell Associate

Los Angeles

[email protected]

(213) 615-1752

31



Documents

Hiring Right: Interviewing and Background Checks