Best Hiring PracticesWASPC Spring Conference, Spokane, WashingtonMay 23, 2017 Beth Kennar

© Summit Law Group 2017

Hiring Legal Risks

• Americans with Disabilities Act– Pre-employment examinations– Failure to accommodate

• Title VII-Discriminatory refusal to hire

• Title VII– Disparate Impact

• Negligent Retention/Supervision

Roadmap

• Job Descriptions• Screening Applications• Interviews• Background Checks• Job Offers• Pre-employment Medical Exams/Drug and

Alcohol Testing• Hiring and Probation

• Essential job functions– Shift work– Include timely and regular attendance?

• Job duties– “other duties as assigned”

• Minimum requirements• Pre-conditions for hiring (e.g., background check, drug

screen)• Technical, physical and other requirements (e.g., strong

communication skills)

Updating Job Descriptions

Why Job Descriptions Matter

• Jacobs. V. N.C. Admin Office (4th Cir. 2015)– Employee with situational anxiety couldn’t handle

front counter work. Question for jury whether an essential function, where job description didn’t mention requirement.

• Minnihan v. Mediacom (8th Cir. 2015)– Ops Supr. argued driving not essential, as rarely

required. In finding driving is essential function, court noted job description says “valid driver’s license with good driving record required.”

Red Flags – Initial Screening

• Short periods of successive employment• Termination• Demotion• Discrepancies in application materials• No references from prior supervisors

(references from co-workers only)• Overqualified • Email addresses like ihateworking@gmail.com

Avoiding Discrimination in Hiring

• Do not consider membership in a protected classification– What you don’t know can’t hurt you

• Do reasonably accommodate disabled applicants – Exception to the Golden Rule

Protected Classifications

• Race and color• National origin (e.g., citizenship, accent, etc.)• Sex• Age (40 or over)• Religion• Disability • Marital status

Protected Classifications Cont’d

• Pregnancy and maternity• Sexual orientation including gender identity• Honorably discharged veteran or military

status• Genetic information (e.g., genetic

propensities, family medical information)

Disability Accommodation in Hiring

• “The Agency reasonably accommodates applicants with disabilities. To request an accommodation, contact _________.”

• No duty to accommodate if:– Undue burden – Modifies a bona fide occupational qualification

• Do not consider information relating to a request for accommodation in the hiring process

Interviewing

• Vital screening tool– Communication– Demeanor – Emotional intelligence

• Select a Panel– Multiple perspectives can result in better outcome– Third parties OK

Interviewing: Preparation

• Prepare questions in advance– Focus on job-related skills and experience– Refer to the job description– Review applications to identify areas that may

need probing with candidates– Ask open-ended questions to get the applicant

talking– Ask tough questions (have you resigned in lieu of

termination)

Inappropriate Areas of Questioning

• Age• Criminal History• Disability• Family• Genetic information• Height and weight• Military service• Name (national origin, marital

status)• National origin• Organizations/clubs

• Photographs• Pregnancy• Race• Religion• Residence• Sex/gender• Sexual orientation• Worker’s compensation• EEOC complaints• Union activity• Whistleblower

True or False?

• It is OK to ask an applicant’s prior employer how many L&I claims they filed.

• Older applicants should be asked how many more years they plan on working.

• You can ask an applicant who is a parent if she has any commitments that would interfere with her ability to work full-time.

• If an applicant speaks with an accent, it’s an appropriate icebreaker to ask where they’re from.

True or False?

• You can ask an applicant about his father’s health.

• You should ask job applicants if they are disabled.

• You should ask applicants whether they celebrate Christmas.

Golden Rule

If you plan to ask one applicant a question on a sensitive topic, you should ask all candidates the same question.

WAC 139-07-020

• Personal history statement. The applicant shall complete and submit to the employing agency a personal history statement on a form prescribed by the employer before the start of a background investigation. The personal history statement form shall contain questions and answers which aid in determining whether the person is suitable for employment as a certified peace officer or a reserve officer. The questions shall address whether the applicant meets the minimum requirements for employment, has engaged in conduct or a pattern of conduct which would jeopardize the public trust in the law enforcement profession, and is of good moral character.

• The personal history should not make prohibited inquiries.

Background Checks

• Prior employers• Arrests and convictions• Social media• Credit checks• Polygraph• Medical exams

Reference Checking

• Prior employers– Should be the most valuable tool to learning relevant

information about the applicant– Risk of litigation for defamation and tortious

interference has limited their value– RCW 4.24.730 provides immunity if certain conditions

met. The disclosed information must relate to: (a) The employee's ability to perform his or her job; (b) the diligence, skill, or reliability with which the employee carried out the duties of his or her job; or (c) any illegal or wrongful act committed by the employee when related to the duties of his or her job.

Improving Chance of Honest Reference

• Obtain a signed release that allows you to contact former employers

• Prepare set of questions that will apprise you of significant problems

• Discipline records of public employees are a public record – request copies under the Public Records Act?

Reference Check Questions

• Skills • Attendance (average/below average) – not why• Discipline• Satisfactory performance ratings• Resignation in lieu of termination• Worked well with others, communication skills • Anything else I should know

Criminal Background Checks

• Required for law enforcement• Reduces liability exposure (negligent hiring,

respondeat superior)

EEOC’s Concerns

• EEOC’s concerns:– Arrest and conviction rates are disproportionately

high for certain races/ethnicities– Many criminal record data bases contain

incomplete or inaccurate information

EEOC: Arrests

• Exclusion based on arrest alone is not job-related or consistent with business necessity

• Not proof of criminal conduct; presumption of innocence

• May consider conduct underlying the arrest if job-related

• Would require independent investigation into evidence

Convictions

• Reliance on conviction must be job related and consistent with business necessity

• State law requires exclusion for felony convictions. What about minor convictions?

• According to EEOC, employer must use a Targeted Screen that allows for Individualized Assessment

Targeted Screen Elements

1. Nature and gravity of the offense/conduct2. Time that has passed (since the offense or

completion of sentence)3. Nature of the job

Individualized Assessment

• If the Targeted Screen disqualifies an applicant, the employer should provide an opportunity for Individualized Assessment:1. Notify the applicant they may be rejected2. Give the applicant the opportunity to convince

the decision maker they should not be rejected

Credit Checks

• For applicants who will have access to money or finances– Fair Credit Reporting Act governs • Explicit notice on a stand-alone document• Written permission• Certification of compliance• Notice prior to taking any adverse action• Notice of adverse action

– Who supplied the report– Right to challenge inaccuracies

• Since 2013, Washington law prohibits:– Requiring disclosure of log-in info– Shoulder surfing– Requiring acceptance of “friend” request– Requiring change in privacy settings to allow access– Using log-in credentials inadvertently obtained through

employer’s monitoring of corporate electronic resources• Applies to applicants and employees• Can recover actual damages, $500 penalty, and

attorney’s fees and costs

Social Media Searches

Pre-employment Medical Exams

• Drug and alcohol testing• Polygraphs• Physicals• Psychological exams

Pre-Employment Medical Exams

• Under the ADA, an employer may not ask a job applicant to answer medical questions or take a medical exam before making a job offer.

• Pre-employment medical examinations can only be made after a conditional offer of an employment. To constitute a real conditional offer, the exam must be the last step in the hiring process.

• Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer has reason to believe an employee would not be able to perform a job successfully or safely because of a medical condition.

Conditional Job Offers

• If hiring includes a medical test, a conditional job offer is required before the test

• “We are pleased to make you a conditional job offer for the position of _______. This job offer is conditioned on : _______________.”

• After testing, interviewing, scoring, background investigation, reference checking, criminal background check, driver’s license check, and all other non-medical inquiries

Non-FTA Drug and Alcohol Testing

• Safety sensitive jobs (police officers, deputies) OK

• Non safety sensitive jobs prohibited– A public employer violates the Washington State

Constitution’s right to privacy by requiring pre-employment drug testing for non safety sensitive positions. City of Seattle, 102 Wn. App. 795 (2000)

Pre-employment Psychological Exams

• State law requires a psychological exam (and polygraph) for employment of police officers

• Must repeat if lapse in peace officer certification from break in service of more than 24 months

Hiring & Probation

• Written job offer– Position– Effective date– Starting wage rate– Union – Probationary period– Signature line for employee

• Notify unsuccessful applicants• Probation: “Speak now or forever hold your peace”

Questions?

Thank You!