Attorneys at Law
EMPLOYMENT LAW AND HIRING
Presented by:
Edward Sponzilli, Esq.
David
id C
Cassidy,
id Esq.
Norris McLaughlin & Marcus, P.A.
721 Route 202-206 North
Somerville, NJ 08876-1018
908 722 0700
908-722-0700
Dated: May 8, 2008
WHY ARE WE HERE TODAY?
Attorneys at Law
„
UCC is an equal opportunity employer (EEO).
„
UCC is committed to diversity and complying with
all federal, state and local laws.
„
These principles apply to hiring and all other
terms of employment.
„
This presentation is designed to further these
principles as relates to the hiring process.
HOW DOES EQUAL OPPORTUNITY
IMPACT THE HIRING PROCESS?
„
Attorneys at Law
It requires that all persons have the right to
apply for and to be evaluated for job
opportunities without regard to any protected
characteristic, such as: race, color, sex, national
origin, religion, age, and mental or physical
handicaps, etc.
WHAT IS EMPLOYMENT
DISCRIMINATION?
Attorneys at Law
„
Employment discrimination occurs when an
individual or group is treated differently than
similar employees or job candidates -- or a
policy has an unfair impact on a group of
candidates or employees.
„
Federal and state laws prohibit employment
discrimination.
„
These laws
Th
l
cover all
ll personnell decisions
d i i
that
th t
could affect equal employment opportunities for
p y
or applicants
pp
for employment.
p y
employees
TYPES OF DISCRIMINATION
Attorneys at Law
„
Disparate Treatment -- treating applicants or
employees differently because of their
membership in a protected class. The central
issue is whether the employer's actions were
motivated by discriminatory intent.
„
Disparate Impact -- focuses
f
on whether or not
the employer has a policy or qualification that
appears
pp
to apply
pp y to everyone
y
the same but,, in
fact, has a significantly greater impact on
members of a protected class.
Attorneys at Law
FEDERAL
EMPLOYMENT LAWS
EMPLOYMENT LAWS
Attorneys at Law
FEDERAL STATUTORY LAWS
ƒ
Title VII of The Civil Rights Acts of 1964
(“Title VII”)
VII”), 42 U.S.C.
U S C §§ 2000(e),
2000(e) et seq.
seq
ƒ
Pregnancy Discrimination Act of 1978, 42
U S C § 2000e(k),
U.S.C.
2000e(k) et seq.
seq
EMPLOYMENT LAWS
Attorneys at Law
FEDERAL STATUTORY LAWS (Cont’d)
ƒ
Age Discrimination
A
Di i i ti
in
i Employment
E
l
tA
Actt
(“ADEA”), 29 U.S.C. § 621, et seq.
ƒ
Americans With Disabilities Act ((“ADA”)
ADA ), 42
U.S.C. § 121101, et seq.
ƒ
Others . .
Others.
UNIFORMED SERVICES EMPLOYMENT
AND REEMPLOYMENT RIGHTS ACT
(1994) USERRA
Attorneys at Law
„
An individual
individual's
s past
past, present or future uniformed
service duty or obligation must not be a negative
factor in any hiring decision.
„
Includes members of the Reserve and National
Guard,, and veterans.
Attorneys at Law
STATE
EMPLOYMENT LAWS
NEW JERSEY LAW AGAINST
DISCRIMINATION,, N.J.S.A. 10:510:5-1,, et
seq.
Attorneys at Law
„
One of the broadest anti-discrimination
anti discrimination laws in
the United States.
„
Provides for civil damages,
damages including lost pay,
pay
emotional distress damages, punitive damages
and attorneys fees.
„
Provides for individual liability!
NEW JERSEY LAW AGAINST
DISCRIMINATION, N.J.S.A. 10:5
10:5--1, et
seq. (Cont’d
(
’d )
Attorneys at Law
„
LAD prohibits employers from discriminating in
any employment practice.
„
Applies to recruitment,
recruitment interviewing,
interviewing hiring,
hiring
promotions, discharge, compensation and the
terms, conditions and privileges of employment.
NEW JERSEY LAW AGAINST
DISCRIMINATION, N.J.S.A. 10:5
10:5--1, et
seq. (Cont’d
(
’d )
„
Attorneys at Law
Applies to race,
race creed,
creed color,
color national origin,
origin
nationality, ancestry, age, sex (including
pregnancy), familial status, marital status,
domestic partnership status, affectional or sexual
orientation, atypical hereditary cellular or blood
trait, genetic information, liability for military
service, and mental or physical disability,
perceived disability, and AIDS and HIV status.
NEW JERSEY LAW AGAINST
DISCRIMINATION, N.J.S.A. 10:5
10:5--1, et
seq. (Cont’d)
(
’d)
Attorneys at Law
„
Governor Jon S.
S Corzine signed into law
amendments to the LAD protecting individuals on
the basis of “civil union status,” which took effect
February 19, 2007. N.J.S.A. 37:1-28, et seq.
„
Beginning June 17, 2007, the LAD also provides
protections on the basis off “gender identity or
expression.” N.J.S.A. 10:5-5(qq).
Attorneys at Law
INDIVIDUAL LIABILITY
INDIVIDUAL LIABILITY
Attorneys at Law
„
N.J.S.A.
N
J S A 10:5
10:5-12a
12a prohibits unlawful employment
practices or unlawful discrimination only by "an
employer."
„
An individual supervisor is not defined as an
"employer" under the LAD. N.J.S.A 10:5-5e.
„
N.J.S.A. 10:5-12e deems it unlawful "[f]or any
person, whether an employer or an employee or
not to aid
not,
aid, abet,
abet incite,
incite compel or coerce the
doing of any of the acts forbidden under this act,
or to attempt to do so."
INDIVIDUAL LIABILITY ((cont’d))
Attorneys at Law
„
To "aid" means "to assist, support or supplement
the efforts of another," and to "abet" means "to
encourage, counsel, incite or instigate.
instigate." Baliko v.
Stecker, 275 N.J. Super. 182, 191 (App. Div.
1994), certif. denied, 162 N.J. 199 (1999) (citing
State v.
v Newell,
Newell 152 N.J.
N J Super.
Super 460,
460 469 (App.
(App
Div. 1977) and several civil cases)
Attorneys at Law
AFFIRMATIVE ACTION
VS.
VS
REVERSE DISCRIMINATION
AFFIRMATIVE ACTION PLAN
Attorneys at Law
„
KLAWITTER V.
V CITY OF TRENTON,
TRENTON 395 N.J.
NJ
Super. 302 (App. Div. 2007)
„
A white male police officer sued the defendant
city claiming “reverse” race discrimination in
violation of state law by being passed over for a
promotion to sergeant in favor of a black officer.
„
The Appellate Division affirmed plaintiff’s reverse
discrimination claim:
„
The use of race as a plus factor is a useful and
legitimate tool
tool, when used as part of an overall
affirmative action plan to rectify racial imbalances
AFFIRMATIVE ACTION PLAN
Attorneys at Law
„
„
„
We need not pass here upon the degree of
formality and specificity that such a plan must
contain
It is apparent, however, that such a plan should
contain as its premise a finding of racial
imbalance and express the basis for that finding,
set forth a g
goal for remediating
g the imbalance,
and prescribe some form
f
off standards by which
the goal will be achieved
Absent at least those basic ingredients, an
employer
l
would
ld h
have th
the ability
bilit tto invoke
i
k the
th
purported "plan" in some employment decisions
but not in others. This, of course, would
constitute arbitrary action and would be inimical
to the salutary purposes underlying affirmative
action plans
AFFIRMATIVE ACTION PLAN
„
„
Attorneys at Law
We hold that race can be considered in an
employment decision only pursuant to and
in accordance with an established
affirmative action plan. Without such a
plan in place, an employer would be in
violation…
violation
An affirmative action plan serves to assure
that the employer’s
p y
motive in considering
g
race was to correct a well founded underrepresentation of minorities and that no
unlawful purpose was at issue.
issue
AFFIRMATIVE ACTION PLAN
„
Attorneys at Law
The existence
Th
i t
off an affirmative
ffi
ti
action plan allows race to be used as
a legitimate
l iti
t factor
f t ffor an
employment decision.
RECRUITING AND OUTREACH
Attorneys at Law
ICLE Affirmative Action In Higher Education And
Employment,, (2007) pp
Employment
pp--2121-22:
„
Position descriptions:
p
Many
y position
p
descriptions are drafted in ways that do
not reflect all of the actual needs or
interests relative to a particular position,
position
thus discouraging quality applicants who
might otherwise apply. The wording of a
position description can shape the
applicant pool to a great extent. Some
ideas to consider include the following:
RECRUITING AND OUTREACH ((cont’d))
Attorneys at Law
„
Tie the
Ti
th description
d
i ti
closely
l
l to
t the
th
actual skills needed for the position,
and
d then
th
be
b consistent
i t t in
i applying
l i
these criteria throughout the
process. See,
S
e.g. Medcalf
M d lf v.
Trustees of Univ. of Pennsylvania, 71
F dA
Fed.Appx.
924
924, 2003 WL 21843021
(3d Cir. 2003)
RECRUITING AND OUTREACH ((cont’d))
Attorneys at Law
„
„
Think carefully about future needs related
to the position and department.
In many searches, the immediacy of
currentt issues
i
((e.g., th
the need
d to
t offer
ff a
particular course in a given semester)
tends to overshadow longer-term
g
needs
and interests. In other cases, committees
tend to compare candidates to the
previous occupant
p
p
of a p
position – rather
than to think prospectively about how a
position or department might change or
evolve over time.
RECRUITING AND OUTREACH ((cont’d))
Attorneys at Law
„
Consider non
non-race-based
race based criteria such as the
ability to work with diverse students or
colleagues, or experience with a variety of
teaching
g methods and curricular perspectives.
p
p
Studies suggest that many women and faculty of
color use a variety of pedagogical techniques,
and this kind of flexibility in pedagogy can be
especially valuable to reflect and relate to the
varying learning styles and increasingly diverse
student bodies. See, e.g., Does Diversity Make a
Difference? Three Research Studies on Diversity
in College Classrooms, American Council on
Education & American Association of University
(
)
Professors (2000).
RECRUITING AND OUTREACH ((cont’d))
Attorneys at Law
„
„
Think about possibilities for
interdisciplinary/interdepartmental work,
which could broaden the potential
applicant pool.
Don’tt delineate narrow or overly stringent
Don
criteria (e.g., requiring a certain number
of years of experience) that are not
necessary for the position, See, e.g.,
Sadki v. SUNY College at Brockport, 310
F S
F.
Supp.2d
2d 506 (W
(W.D.N.Y
D N Y 2004)
Attorneys at Law
UCC’s Policies
UCC’S EQUAL EMPLOYMENT
OPPORTUNITY POLICY STATEMENT
Attorneys at Law
„
Union County College is committed to equal
employment opportunity and to maintaining a
work environment for faculty and staff which is
free of discrimination on the basis of race, sex,
color, age, national origin, disability, sexual
orientation, religion, or marital status.
„
Anyone who violates this policy may be subject to
disciplinary
p
y action,, including
g termination.
„
Applies to the hiring process too.
AMERICANS WITH DISABILITIES ACT OF
1990 POLICY STATEMENT
Attorneys at Law
„
Union County College does not discriminate
against qualified individuals with disabilities.
„
The College provides reasonable
accommodations, as required by law, to qualified
applicants and employees.
„
Employment or promotion opportunities will not
be denied to an employee because of the need to
make
k reasonable
bl accommodations
d ti
or
modifications.
UNION COUNTY COLLEGE'S
AFFIRMATIVE ACTION OFFICE
Attorneys at Law
„
UCC s Affirmative Action Office works with the
UCC’s
administration to ensure compliance with all EEO
laws and other employment related legislation.
„
The Affirmative Action Office is also responsible
for investigating employee complaints of
discrimination and harassment.
Attorneys at Law
PRE--INTERVIEW PROCESS
PRE
HOW DO THESE LAWS APPLY TO THE
HIRING PROCESS?
„
Attorneys at Law
Laws apply to recruitment,
recruitment interviewing,
interviewing selection
and offer of employment
ƒ Advertising and job postings
ƒ Interviewing
ƒ Selection
l
ADVERTISEMENTS AND JOB POSTINGS
Attorneys at Law
„
Define the job
job, qualifications and selection
criteria in a nondiscriminatory manner.
„
Advertisement and posting should be consistent
with the position that is sought.
„
The interview and selection process should be
consistent with the advertisement or posting.
ADVERTISING RESTRICTIONS
Attorneys at Law
„
Federal and NJ law prohibits advertising for
employment, on the basis of protected
characteristics, such as: race, sex, color, religion,
national origin, age, marital status, familial
status, disability.
TITLE VII – CIVIL RIGHTS
Attorneys at Law
Title VII says it shall be an unlawful employment
practice for an employer . . . to print or publish
or cause to be printed or published any notice
or advertisement relating to employment by
such an employer . . . indicating any
preference, limitation, specification which
discriminates based on: race,, color,, religion,
g
, sex,,
or national origin, except . . .
a notice or advertisement may indicate a
preference, limitation, specification, or
discrimination based on religion, sex, or national
origin when religion
religion, sex
sex, or national origin is a
bona fide occupational qualification for
employment.
EXAMPLE
Attorneys at Law
„
“Wanted:
Wanted: attractive,
attractive young female for waitress
position.” This violates Title VII because the ad
specifies the sex and age of the desired employee
and uses sex-referential language (waitress).
GOOGLE/MYSPACE/FACEBOOK/
RESEARCH
Attorneys at Law
„
Good idea – maybe?
„
The Good – public information about an applicant
that may provide insight into the applicant.
GOOGLE/MYSPACE/FACEBOOK
RESEARCH (Cont’d)
(Cont d)
Attorneys at Law
„
CollegeGrad.com, found that 47% of college grad
job seekers who use social networking sites such
as MySpace
M S
and
d Facebook
F
b k have
h
either
ith already
l
d
changed or plan to change the content of their
pages as a result of their job search.
„
The survey was conducted nationally using an
online poll placed on the CollegeGrad.com home
page during June 2006. The results are based on
more than
th
1
1,600
600 respondents.
d t
GOOGLE/MYSPACE/FACEBOOK
RESEARCH (Cont’d)
(Cont d)
Attorneys at Law
„
The Bad – prohibited information; false
information.
„
Curiosity killed the cat?
„
Examples – religious affiliation; disabilities;
sexual orientation revealed.
revealed
GOOGLE/MYSPACE/FACEBOOK
RESEARCH (Cont’d)
(C t’d)
Attorneys at Law
„
Anyone can post to a website using someone
else's name
„
There could be others with the same name
„
Maiden name/name changes
„
Privacy issues?
GOOGLE/MYSPACE/FACEBOOK
RESEARCH (Cont’d)
(Cont d)
Attorneys at Law
„
If you do it,
it follow these rules:
„
Employment laws apply to the information
gathered: disregard protected characteristics in
your decision-making process
„
B consistent
Be
i t t
„
Same applies to blogs and information therein
GUIDELINES FOR RECRUITMENT
Attorneys at Law
„
Define the position and the qualifications.
qualifications
„
Demonstrate a job-related necessity for the
qualifications and asking any related question.
question
„
Is this information really needed in order to judge
the applicant’s
applicant s qualifications
qualifications, level of skills and
overall competence for the job in question?
Attorneys at Law
THE INTERVIEW PROCESS
LAWFUL & EFFECTIVE SCREENING
METHODS
„
Attorneys at Law
Avoid questions which directly or indirectly
inquire into protected status, unless justified
by
y business necessity
y
• Race
• age/date
/d t graduated
d t d high
hi h school
h l
• marital status/are you the primary
b
breadwinner
d i
• Etc . . .
LAWFUL & EFFECTIVE SCREENING
METHODS (cont’d)
(cont d)
„
Race and color discrimination
„
There are no acceptable inquiries about a
person’s race or color
Attorneys at Law
Direct inquiries
• You cannot ask a p
person what race they
y are
Indirect inquiries
• You cannot require a photograph with an
application
• There should not be notations concerning
g an
applicant’s race or ethnicity on personnel
forms
GUIDELINES ON INTERVIEWING
Attorneys at Law
„
Gender - Pregnancy
– There are NO acceptable questions regarding a
persons gender OR pregnancy.
„
Marital Status/Name Changes/Number of
Children
– These kind of questions may be construed as
discriminating against women.
GUIDELINES ON INTERVIEWING ((cont’d))
Attorneys at Law
„
Employers cannot discriminate against applicants
on the basis of their citizenship or national origin.
„
Avoid questions designed to elicit information
about an applicant’s country of origin or
citizenship status.
GUIDELINES ON INTERVIEWING ((cont’d))
Attorneys at Law
„
National Origin and Citizenship
– You may NOT ask where an applicant was
born.
– You may NOT ask an applicant where their
parents were born.
– Language skills – only ask if it’s a requirement
of the job.
„
Employers may ask applicants about their ability
to provide evidence that they are eligible to work
in the United States.
States
GUIDELINES ON INTERVIEWING ((cont'd)
(cont'd)
Attorneys at Law
„
Age
– You should NOT ask questions which infer any
age specifications or limitations
ƒ i.e., “recent graduates” – “when did you
graduate?”
ƒ Driver’s license
„
Religion
– You CANNOT ask about a person’s religion or
religious affiliations.
– Organization or club memberships
Attorneys at Law
SOME NOTNOT-SO
SO--OBVIOUS
EXAMPLES OF
DISCRIMINATION
UNLAWFUL STEREOTYPING DURING
HIRING PROCESS – CAREGIVER
RESPONSIBILITIES
Attorneys at Law
„
An example:
„
At the interview, Bob, the manager of the
department, noticed Patricia
Patricia’s
s wedding ring and
asked, “How many kids do you have?”
„
The applicant stated she had no children yet but
that she planned to once she and her husband
had gotten their careers underway.
„
Bob explained that the duties of a marketing
assistant are very demanding, and rather than
discuss Patricia’s qualifications, he asked how she
would balance work and childcare responsibilities
when the need arose.
UNLAWFUL STEREOTYPING DURING
HIRING PROCESS – CAREGIVER
RESPONSIBILITIES (Cont’d)
Attorneys at Law
„
Bob later told his secretary that he was
concerned about hiring a young married woman –
he thought she might have kids, and he didn’t
believe that being a mother was “compatible with
a fast-paced business environment.”
„
A week after
f
the interview, Patricia was notified
f
that she was not hired.
UNLAWFUL STEREOTYPING DURING
HIRING PROCESS – CAREGIVER
RESPONSIBILITIES (Cont’d)
Attorneys at Law
„
Is this unlawful?
„
The employer said that it reposted the position because
it was not satisfied with the experience level of the
applicants in the first round.
„
In reality
reality, the applicant easily met the requirements for
the position and had as much experience as some other
individuals recently hired as marketing assistants.
„
Under these circumstances, the employer rejected
Patricia from the first round of hiring because of sexb
based
d stereotype
t
t
i violation
in
i l ti off Titl
Title VII
VII.
UNLAWFUL STEREOTYPING -ASSOCIATION WITH AN INDIVIDUAL
WITH A DISABILITY
Attorneys at Law
„
An employer cannot refuse to hire someone based upon
the applicant’s association with someone with a disability
or caregiver responsibilities of someone with a disability.
„
Under these circumstances, the employer has violated
the ADA by refusing to hire an individual because of his
or her association with an individual with a disability
DISABILITIES
Attorneys at Law
„
Disability
– You may not make a medical inquiry prior to
an offer of employment.
employment
– You may not ask whether or not the applicant
has a particular disability – medical inquiry.
inquiry
– You may ask whether or not the applicant can
perform the duties of the job in question.
question
DISABILITIES
Attorneys at Law
„
May an employer ask whether an applicant
can meet the employer's attendance
requirements?
DISABILITIES
Attorneys at Law
„
Yes.
„
An employer may state its attendance
requirements and ask whether an applicant
can meet them.
them
„
An employer also may ask about an
applicant's
applicant
s prior attendance record (for
example, how many days the applicant was
absent from his/her last job).
„
But, an employer may not ask how many
days an applicant was sick, because these
questions relate directly
q
y to the severity
y of an
individual's impairments.
DISABILITIES
Attorneys at Law
„
May an employer ask applicants whether
they will need a reasonable accommodation
to perform the functions of the job?
„
How about whether a reasonable
accommodation is required for the hiring
process?
DISABILITIES
Attorneys at Law
„
In general, an employer may not ask
questions on an application or in an interview
about whether an applicant will need a
reasonable accommodation for a job.
„
An employer may tell applicants what the
hiring process involves (for example, an
interview, timed written test, or job
demonstration), and may ask applicants
whether they will need a reasonable
accommodation for this process.
WHEN INTERVIEWING PERSONS
WITH DISABILITIES
Attorneys at Law
– Don
Don’tt
ƒ Don’t touch or talk to a seeing-eyed dog.
ƒ Don
Don’tt ask about a person’s
person s disability history
history.
ƒ Don’t ask about prior workers’
compensation claims.
claims
ƒ Don’t ask how the person became disabled.
ƒ Don’t ask how a person is going to get to
work.
OTHER CHARACTERISTICS PROTECTED
FROM DISCRIMINATION
Attorneys at Law
– Financial Status
ƒ You cannot ask whether a person has ever
filed for bankruptcy.
bankruptcy
– Sexual Preference
ƒ There are no permissible questions
regarding a person’s sexual preferences.
– Marital Status
ƒ You may not ask an applicant what their
marital status is.
OTHER CHARACTERISTICS PROTECTED
FROM DISCRIMINATION (Cont’d)
(C t’d)
Attorneys at Law
– Union Membership
ƒ Any questions regarding union membership
are prohibited by the National Labor
Relations Act.
– Height and/or Weight Restrictions
ƒ Unless the restrictions are related to specific
job requirements,
requirements they should not be asked
about.
SELECTION GUIDELINES
Attorneys at Law
Disparate treatment analysis
• Consistency as to criteria: advertisement,
posting, job description, interview
• Do incumbents possess requisite
qualifications?
• Even-handed application without regard to
protected status
Objective vs. Subjective
Attorneys at Law
NEW JERSEY FORFEITURE LAW
New Jersey Forfeiture of
Public Office Act,, N.J.S.A.
2C:51--2
2C:51
ARREST, CONVICTIONS AND RESUME
FRAUD
Attorneys at Law
– You cannot ask if a person has ever
been arrested
– You
Yo can ask,
ask “Have
“Ha e you
o ever
e e been
convicted of a crime? If so, when,
where and what was the disposition
p
of
the case?”
ƒ If a person answers, “YES”,
YES , you must
then apply the “Business Necessity
Test”
2C:51-2. FORFEITURE OF PUBLIC
2C:51OFFICE POSITION,
OFFICE,
POSITION OR EMPLOYMENT
„
Attorneys at Law
A person holding any public office,
office position
position, or
employment, elective or appointive, under the
government of this State or any agency or political
subdivision thereof, who is convicted of an offense shall
forfeit such office, position or employment if:
(1) He is convicted under the laws of this State of an
offense involving dishonesty or of a crime of the
third degree
g
or above or under the laws of another
state or of the United States of an offense or a crime
which, if committed in this State, would be such an
offense or crime;
2C:51-2. FORFEITURE OF PUBLIC
2C:51OFFICE,, POSITION,, OR EMPLOYMENT
(Cont’d)
Attorneys at Law
(2) He is convicted of an offense involving or touching
such office, position or employment; or
(3) The Constitution so provides.
„
As used in this subsection
subsection, "involving
involving or touching such
office, position or employment" means an offense
related directly to the person's performance in, or
circumstances flowing from
from, the specific position
position.
Charles Cedeno v. Montclair State
U i
University,
it ett als.
l 163 N.J.
N J 473 (2000)
Attorneys at Law
„
Charles Cedeno applied for the position of Director of
Purchasing at Montclair State University (Montclair).
„
The job application asked whether he had any criminal
convictions, which Cedeno falsely answered in the
negative.
„
Cedeno was hired by Montclair to fill the position.
„
Cedeno was discharged 10 years later
later.
Charles Cedeno v. Montclair State
U i
University,
it ett als.
l (cont’d)
(
t’d)
Attorneys at Law
„
The New Jersey Supreme Court addressed whether a
person who is statutorily disqualified from obtaining
public employment as a result of a criminal conviction
may maintain an action for an alleged wrongful
discharge, in violation of the Conscientious Employee
Protection Act (CEPA) and the Law Against
Discrimination (LAD).
„
The Court held:
Charles Cedeno v. Montclair State
University et als
University,
als. (cont
(cont’d)
d)
Attorneys at Law
„
The employee could not pursue claims as he was
precluded from employment originally under the
Forfeiture Law.
„
Left open the possibility that a disqualified individual may
be able to allege facts that would constitute aggravated
harm or egregious discriminatory conduct sufficient to
survive a motion for summary judgment.
RESUME FRAUD & AFTER ACQUIRED
EVIDENCE DOCTRINE
Attorneys at Law
„
An employee is entitled to relief even if the employer
later discovers evidence of wrongdoing that would have
led to the employee's termination. McKennon v.
Nashville Banner Publishing Co., 115 S.Ct. 879 (1995).
„
Remedies of frontpay, reinstatement and backpay limited
to the extent necessary to protect the employer's
legitimate interest in severing the employment
relationship.
p
„
Applies equally to Title VII and ADA.
Attorneys at Law
PRACTICAL TIPS
HIRING STEPS
Attorneys at Law
„
„
„
„
„
„
„
„
„
Define the job
Recruit applicants from the broadest pool
possible
Screen the applications and/or resumes
Interview the likely candidates
Test candidates, if necessary, for the job
Check references
f
and pertinent background
information
Evaluate candidates
Extend an offer of employment
Remember that interviewing is only one of the
steps involved in the hiring process
WHAT IF THE APPLICANT BRINGS UP A
TOPIC SUCH AS A REFERENCE TO HIS OR
HER AGE, RELIGION OR DISABILITY?
Attorneys at Law
„
If an applicant raises one of these topics
topics, you should not
ask questions that may elicit further information.
„
As a general rule
rule, focus your interview on describing the
responsibilities, duties and performance expectations of
the job.
PRACTICAL TIPS FOR CONDUCTING
EMPLOYMENT INTERVIEWS
Attorneys at Law
„
Review and update job descriptions - do they
accurately reflect the duties for the position.
„
Be prepared for the interview and know what
questions you will ask all applicants.
„
Be uniform in your approach.
approach
„
Stay focused; listen carefully.
PRACTICAL TIPS FOR CONDUCTING
EMPLOYMENT INTERVIEWS (cont’d)
(
t’d)
Attorneys at Law
„
Evaluate an applicant
applicant’s
s resume in relation to
the requirements of the position.
„
Promote discussion about the position,
including specifics about the essential job
functions and your expectations for performance
and other goals
„
Make notes about the interview without being
derogatory or discriminatory.
„
Avoid subjective analysis of the applicant if
possible.
DOCUMENTATION AND RETENTION
Attorneys at Law
„
Maintain Accurate Documentation
„
Application and associated forms
„
Interview forms
„
Job descriptions
p
„
Confidentiality/maintenance of separate files
Attorneys at Law
YOU’RE HIRED
Compliance with Requirements of
the U
U.S.
S Citizenship and
Immigration Services
COMPLIANCE WITH U.S. CITIZENSHIP
AND IMMIGRATION SERVICES (cont’d)
(
t’d)
Attorneys at Law
„
For all new employees hired after
11/6/86, an I-9 form must be
completed
„
The I-9
I 9 was changed effective
6/5/07. Its purpose was to reduce
the number of documents permitted
to prove employment eligibility (to
reduce fraud))
COMPLIANCE WITH U.S. CITIZENSHIP
AND IMMIGRATION SERVICES (cont’d)
(
t’d)
„
Attorneys at Law
An employer
A
l
can verify
if eligibility
li ibilit also
l
(in addition) with the Department of
H
Homeland
l dS
Security
it
COMPLIANCE WITH U.S. CITIZENSHIP
AND IMMIGRATION SERVICES (cont’d)
(
t’d)
Attorneys at Law
„
§ 1 of the I-9
I 9 is to be completed by the
employee on or before the first day of
employment
p y
„
§ 2 of the I-9 for the employer should be
completed within 3 days of hire
„
The employer
Th
l
may nott tell
t ll the
th employee
l
which documents to use to establish
identity and work eligibility
COMPLIANCE WITH U.S. CITIZENSHIP
AND IMMIGRATION SERVICES (cont’d
((cont’d)
t’d
t’d)
Attorneys at Law
„
However, the employer may direct the
However
employee to the list on the reverse side of
the I-9 form
„
List A has been reduced to delete:
–
–
–
–
–
Certificate of U.S. Citizenship
Certificate of Naturalization
Alien Representation Receipts card
Unexpired Reentry Permit
p
Refugee
g
Travel Document
Unexpired
COMPLIANCE WITH U.S. CITIZENSHIP
AND IMMIGRATION SERVICES (cont’d)
(
t’d)
Attorneys at Law
„
The employer need only use good faith to
verify the identity and eligibility for U.S.
employment
„
But, if the employer rejects an employee
But
due to inadequate document verification,
and the documentation turns out to be
valid and adequate, the employer may be
subject to liability for discrimination