Best Hiring Practices
WASPC Spring Conference, Spokane, Washington
May 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
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Job Descriptions
Screening Applications
Interviews
Background Checks
Job Offers
Pre-employment Medical Exams/Drug and
Alcohol Testing
• Hiring and Probation
Updating Job Descriptions
• 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)
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
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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 [email protected]
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
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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
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Age
Criminal History
Disability
Family
Genetic information
Height and weight
Military service
Name (national origin,
marital status)
• National origin
• Organizations/clubs
• Photographs
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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
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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
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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 jobrelated 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/conduct
2. 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 rejected
2. 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
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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
Social Media Searches
• Since 2013, Washington law prohibits:
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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
Pre-employment Medical Exams
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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 preemployment 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
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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!