The Employment Process
Screening, Interviewing, & Hiring
Personnel Administrators of North Carolina Conference
October 7, 2013
Before we begin . . . SB 91
• (c) Employer or Educational Institution Inquiry Regarding
Disclosure of Expunged Arrest, Criminal Charge, or Conviction.
An employer or educational institution shall not, in any application,
interview, or otherwise, require an applicant for employment or
admission to disclose information concerning any arrest, criminal
charge, or criminal conviction of the applicant that has been expunged
and shall not knowingly and willingly inquire about any arrest, charge,
or conviction that they know to have been expunged. An applicant
need not, in answer to any question concerning any arrest or criminal
charge that has not resulted in a conviction, include a reference to or
information concerning arrests, charges, or convictions that have been
expunged.
SB 91
• (d) State or Local Government Agency, Official,
and Employee Inquiry Regarding Disclosure of
Expunged Arrest, Criminal Charge, or Conviction.
Agencies, officials, and employees of the State and local
governments who request disclosure of information
concerning any arrest, criminal charge, or criminal
conviction of the applicant shall first advise the
applicant that State law allows the applicant to not
refer to any arrest, charge, or conviction that has been
expunged.
SB 91
• Can easily add this language to any internal
applications:.
• Two Locations:
– Section inquiring about charges, arrests, convictions:
“In accordance with State law, you are not required to
disclose any arrest, charge, or conviction that has
been expunged from the public record.”
– Legal Release at End of Application: “I understand
that I am not required to disclose any arrest, charge or
conviction that has been expunged from the public
record.”
SB 91
• May still inquire about criminal charges,
arrests, or convictions not expunged from the
public record
• What to look out for:
– States have different rules for expunging records
– This would not include charges or convictions in
the process of being expunged
– $500 civil penalty for non-compliance
Use of Criminal Background Checks in
the Hiring Process
• 115C-332 allows District to conduct criminal
background check (at no cost to applicant)
• Must be done uniformly
• A 3rd Party agency may be used, but requires
compliance with Fair Credit Reporting Act.
• BOE will determine whether results indicate
applicant:
– Poses a threat to the physical safety of students or
personnel; or
– Has demonstrated that he or she does not have the
integrity or honesty to be a school employee
Use of Criminal Background Checks in
the Hiring Process
• These crimes include:
– Endangering Legislative and
Executive Officers
– Rape
– Assaults
– Kidnapping
– Malicious Injury by Bomb
– Burglary
– Arson
– Embezzlement
– False Pretense
– Fraud
– Forgery
– Offense against public
Morality/Decency
– Violation of Adult
Establishment Laws
– Prostitution
– Riots/Civil Disorder
– Offenses Against Minors
– Possession/Sale of Drugs
– Driving While Impaired
– Selling Alcohol to Minors
Recent EEOC Guidance
• In 2012, the EEOC adopted new guidance on
how criminal background checks and how the
use of such checks may result in a disparate
impact based on race and national origin.
• Title VII also prohibits the use of background
/criminal checks to intentionally discriminate
against applicants (Disparate Treatment)
• http://www.eeoc.gov/laws/guidance/upload/
arrest_conviction.pdf
Example 1: Disparate Treatment Based on Race.
John, who is White, and Robert, who is African
American, are both recent graduates of State
University. They have similar educational backgrounds,
skills, and work experience. They each pled guilty to
charges of possessing and distributing marijuana as
high school students, and neither of them had any
subsequent contact with the criminal justice system.
Example 1 continued
After college, they both apply for employment with Office Jobs,
Inc., which, after short intake interviews, obtains their consent to
conduct a background check. Based on the outcome of the
background check, which reveals their drug convictions, an Office
Jobs, Inc., representative decides not to refer Robert for a followup interview. The representative remarked to a co-worker that
Office Jobs, Inc., cannot afford to refer “these drug dealer types”
to client companies. However, the same representative refers
John for an interview, asserting that John’s youth at the time of
the conviction and his subsequent lack of contact with the
criminal justice system make the conviction unimportant.
Example 2: Disparate Treatment Based on National Origin.
Tad, who is White, and Nelson, who is Latino, are both recent high
school graduates with grade point averages above 4.0 and college
plans. While Nelson has successfully worked full-time for a
landscaping company during the summers, Tad only held occasional
lawn-mowing and camp-counselor jobs. In an interview for a research
job with Meaningful and Paid Internships, Inc. (MPII), Tad discloses
that he pled guilty to a felony at age 16 for accessing his school’s
computer system over the course of several months without
authorization and changing his classmates’ grades. Nelson, in an
interview with MPII, emphasizes his successful prior work experience,
from which he has good references, but also discloses that, at age 16,
he pled guilty to breaking and entering into his high school as part of a
class prank that caused little damage to school property. Neither Tad
nor Nelson had subsequent contact with the criminal justice system.
Ex. 2 Continued
The hiring manager at MPII invites Tad for a second interview,
despite his record of criminal conduct. However, the same hiring
manager sends Nelson a rejection notice, saying to a colleague that
Nelson is only qualified to do manual labor and, moreover, that he
has a criminal record.
In light of the evidence showing that Nelson’s and Tad’s educational
backgrounds are similar, that Nelson’s work experience is more
extensive, and that Tad’s criminal conduct is more indicative of
untrustworthiness, MPII has failed to state a legitimate,
nondiscriminatory reason for rejecting Nelson.
Disparate Impact
• In a disparate impact claim, the EEOC/Court
will look at the following relevant information:
– Policy and Procedures
– Which offenses were reported
– Whether convictions arrests or other charges are
reported
– The timeline of reported offenses
– Which positions have criminal background checks
From the Guidance
• In 2012, 28% of all arrests were AfricanAmericans, despite African Americans only make
up 14% of the population
• In 2008, Hispanics were arrested on federal drug
charges 3 times more than the general
population
• Both groups were more likely than Whites to be
arrested, convicted or sentenced for drug
offenses even though their rate of drug use is
similar to Whites
Job Related and Business Necessity
• Employer validates the criminal conduct
exclusion (best practices)
• Employer develops a targeted screen
considering the nature of the crime, the time
elapsed, and the nature of the job.
• Policy provides an opportunity for an
individualized assessment to determine if
policy is consistent with business necessity
Job Related and Business Necessity
• The burden shifts to the employer to
demonstrate “job related and business
necessity.”
• One Court used these three factors (the Green
factors)
– Nature and gravity of the offense
– The time that has passed
– The nature of the job
Using Arrest records
• Example 3: Arrest Record Is Not Grounds for Exclusion.
• Mervin and Karen, a middle-aged African American couple, are
driving to church in a predominantly white town. An officer stops
them and interrogates them about their destination. When Mervin
becomes annoyed and comments that his offense is simply “driving
while Black,” the officer arrests him for disorderly conduct. The
prosecutor decides not to file charges against Mervin, but the arrest
remains in the police department’s database and is reported in a
background check when Mervin applies with his employer of fifteen
years for a promotion to an executive position. The employer’s
practice is to deny such promotions to individuals with arrest
records, even without a conviction, because it views an arrest
record as an indicator of untrustworthiness and irresponsibility.
Using Arrest Records
• If Mervin filed a Title VII charge based on
these facts, and disparate impact based on
race was established, the EEOC would find
reasonable cause to believe that his employer
violated Title VII.
• Employer may use the underlying conduct as a
reason to deny promotion if it makes the
individual unfit for the job
EEOC gave us this example . . .
•
Example 4: Employer's Inquiry into Conduct Underlying Arrest.
•
Andrew, a Latino man, worked as an assistant principal in Elementary School for
several years. After several ten and eleven-year-old girls attending the school
accused him of touching them inappropriately on the chest, Andrew was arrested
and charged with several counts of endangering the welfare of children and sexual
abuse.
•
Elementary School has a policy that requires suspension or termination of any
employee who the school believes engaged in conduct that impacts the health or
safety of the students. After learning of the accusations, the school immediately
places Andrew on unpaid administrative leave pending an investigation. In the
course of its investigation, the school provides Andrew a chance to explain the
events and circumstances that led to his arrest. Andrew denies the allegations,
saying that he may have brushed up against the girls in the crowded hallways or
lunchroom, but that he doesn’t really remember the incidents and does not have
regular contact with any of the girls. The school also talks with the girls, and
several of them recount touching in crowded situations. The school does not find
Andrew’s explanation credible. Based on Andrew’s conduct, the school terminates
his employment pursuant to its policy.
• Andrew challenges the policy as discriminatory under Title
VII. He asserts that it has a disparate impact based on
national origin and that his employer may not suspend or
terminate him based solely on an arrest without a
conviction because he is innocent until proven guilty.
• After confirming that an arrest policy would have a
disparate impact based on national origin, the EEOC
concludes that no discrimination occurred. The school’s
policy is linked to conduct that is relevant to the particular
jobs at issue, and the exclusion is made based on
descriptions of the underlying conduct, not the fact of the
arrest.
• The Commission finds no reasonable cause to believe Title
VII was violated.
Example 5: Exclusion Is Not Job Related and Consistent with Business Necessity.
Your Bank has a rule prohibiting anyone with convictions for any type of financial or fraudrelated crimes within the last twenty years from working in positions with access to
customer financial information, even though the federal ban is ten years for individuals
who are convicted of any criminal offense involving dishonesty, breach of trust, or money
laundering from serving in such positions.
Sam, who is Latino, applies to Your Bank to work as a customer service representative. A
background check reveals that Sam was convicted of a misdemeanor for misrepresenting
his income on a loan application fifteen years earlier. Your Bank therefore rejects Sam, and
he files a Title VII charge with the EEOC, alleging that the Bank’s policy has a disparate
impact based on national origin and is not job related and consistent with business
necessity.
Your Bank asserts that its policy does not cause a disparate impact and that, even if it
does, it is job related for the position in question because customer service
representatives have regular access to financial information and depositors must have
“100% confidence” that their funds are safe.
However, Your Bank does not offer evidence showing that there is an elevated
likelihood of committing financial crimes for someone who has been crime-free for
more than ten years. After establishing that the Bank’s policy has a disparate impact
based on national origin, the EEOC finds that the policy is not job related for the
position in question and consistent with business necessity.
The Bank’s justification for adding ten years to the federally mandated exclusion is
insufficient because it is only a generalized concern about security, without proof.
Where to go from here . . .
• Establish a sound policy that:
– demonstrates how criminal background checks
are job related to working with or around
children;
– There is no automatic exclusion – basically an
independent analysis is used to determine
whether applicant is fit for the position
– Identify which criminal offenses apply
– Determine the duration, if any, that will be used
– See NCSBA Policy
Where to go from here . . .
• Because most background checks are performed on a
finalist only, perform an individualized assessment of
the conviction to determine whether the charge meets
the standards in your policy
– Give the candidate an opportunity to explain
• For arrests or charges with no conviction – look to the
underlying conduct and inquire with the candidate
• Train Principals and HR Staff to follow policy
• Be on the look out for more cases in this area of the
law
INTERVIEWING
IT SEEMED LIKED A GOOD QUESTION TO ME?
The following questions are examples of those innocent sounding questions that could lead you into
hot water!
1.
I see you went to _____________University. My son went there as well. What year did
you graduate?
2.
You have an absolutely beautiful accent. Where were you born?
3.
I see you speak Spanish. That is excellent. We need someone who can speak Spanish
fluently given the large Hispanic population here in town. Is Spanish your native
language?
4.
This is a wonderful community to raise a family. That is one of the reasons why I decided
to come here myself. My children just love it here. You and your husband have been
married for a few years now, right? Do you plan to have children?
5.
Do you have any health issues that we should know about?
6.
I understand that you are new to the community. Have you joined a church or any other
organization in town?
7.
Are you currently on any medications?
8.
Who do you live with?
PRACTICE TIP – Basic Hiring Procedure
- Request sent through appropriate approvals for posting position.
- HR works with supervisor to update job description and look at qualifications.
- Position is posted.
newspaper.
Typically internally, webpage, job banks, ESC and possible
- Have a diverse committee that is made up of supervisor, representative from
department, another which works closely with position and someone who does not
work closely with department or position.
- Have pre-selection committee meeting to review legalities, confidentiality and scope
of position.
- Once position is closed HR scans application packets for completeness and
qualifications. Then each committee member reviews them individually. Ranking is
excellent, good, fair and poor. Also on form is place for comments. Note – Comments
should be about applicants’ qualifications.
Basic Hiring Procedure Continued
-
Once all members have reviewed, the rankings are compiled and then the
committee comes together again to discuss top candidates to interview.
-
The committee comes up with the top two recommendations or
selections (whichever is appropriate).
-
HR begins checking references of top candidate. If a red flag comes up
we begin checking on the second candidate. Note – supervisor may also
check references.
-
Once reference checks are complete, move forward with final process
-
Determine Salary
-
Make an offer
PRACTICE TIP – SAMPLE BASIC QUALIFICATION IN JOB POSTING
When Too Much is Too Much?
MINIMUM QUALIFICATIONS OR STANDARDS REQUIRED TO PERFORM ESSENTIAL JOB
FUNCTIONS
Physical Requirements: Must be physically able to sit, stand, walk and drive. Must be able to lift boxes up to 10 pounds. Physical
demand requirements are for Light Work.
Data Conception: Requires the ability to compare and/or judge the readily observable, functional, structural or composite characteristics
(whether similar or divergent from obvious standards) of data, people or things.
Interpersonal Communication: Requires the ability to speak and/or signal people to convey or exchange information. Includes giving
instructions, assignments or directions to subordinates or assistants.
Intelligence: Requires the ability to apply common sense understanding to carry out instructions furnished in written, oral or
diagrammatic form; to deal with problems involving several concrete variables in or from standardized situations.
Verbal Aptitude: Requires the ability to record and deliver information, to explain procedures, to follow oral and written
instructions. Must be able to communicate effectively and efficiently in standard English.
Numerical Aptitude: Requires the ability to utilize mathematical formulas, to add, subtract, divide and multiply.
Form/Spatial Aptitude: Requires the ability to inspect items for proper length, width and shape.
Motor Coordination: Requires the ability to coordinate hands and eyes rapidly and accurately in using computers and other technology.
Manual Dexterity:
Must have minimal levels of eye/hand/foot coordination.
Color Discrimination: Requires the ability to differentiate between colors or shades of color.
Interpersonal Temperament: Requires the ability to deal with people beyond giving and receiving instructions. Must be adaptable to
performing under average levels of stress.
Physical Communications: Requires the ability to see, talk and hear.
Checking References
• Failure to Check References is the biggest
mistake employers make.
• Three types of references – the positive,
neutral and negative.
• Be on the lookout for the not-so-neutral
reference .
• When receiving a neutral or evasive reference,
ask the employer if the applicant would be
eligible for rehire.
Questions