PACAH
S PRING C ONFERENCE
A PRIL 29, 2015
W HERE
’
D WE GET THAT
GUY ? L EGAL I SSUES IN
H IRING .
Presented by:
Michael McAuliffe Miller mmiller@eckertseamans.com
717.237.7174
and
Kevin M. Skjoldal kskjoldal@eckertseamans.com
717.237.6039
*No statements made in this seminar or in the written materials/PowerPoint should be construed as legal advice pertaining to specific factual situations.

2

• Legally effective personnel practices begin with the hiring process.
• All employers must treat the hiring process as a very serious part of their business and must give the hiring and selection process the time and attention to detail that are required.
3

• Federal, state and local rules have created zones of concern that must be respected by employers in the hiring and selection process.
• Zones of concern focus on:
 Discrimination issues
 Privacy issues
• Burden is on the employer to justify the need for the information you are requesting from the applicant.
4

• Discrimination issues zones of concern:
 The applicant's membership in a protected class (e.g. race, sex, age, religion, national origin or disability status).
 No inquiries designed to solicit such information.
5

• Privacy issues zones of concern:
 Applicants do have an expectation of privacy concerning the use and dissemination of information obtained in the selection process -- Need to Know.
 Likewise, certain inquiries are prohibited because of an applicant's legitimate expectation of privacy in his/her personal information.
6

•
Every question asked or piece of information gathered should relate to job qualifications and have some demonstrable relevance to the employment decision.
•
If the information is not likely to help in assessing the applicant's qualifications, DON'T ASK FOR IT.
7

•
All information obtained from an applicant should only be disseminated on a need-to-know basis.
•
When recruiting and advertising for positions, be careful what you write. Avoid direct or indirect references to age, race, sex, etc. Describe the relevant job requirements (education, skills, experience, etc.).
8

• Remember, the interview is serious business and a critical aspect of the hiring process.
•
An improperly conducted interview can be the basis of an intentional discrimination claim
(disparate treatment) or it can be the basis for a disparate impact claim -- the interview can be the selection technique which disproportionately screens out minorities or females.
9

PRACTICAL SUGGESTIONS FOR
INTERVIEWS
•
Review the applicant's resume thoroughly. Be aware of gaps in employment.
•
Do not write on or in any way mark-up the applicant's resume or the application itself. Keep notes on a separate sheet of paper. Avoid extraneous comments
(e.g., lacks energy; child care issues).
• Make no promises (e.g., you will love it here; our employees work here forever).
10

• Utilize written job descriptions (which, hopefully, have been revised, are accurate and are up-to-date) as a guide for keeping the interview focused on jobrelated issues.
•
Ask open-ended questions which encourage the applicant to provide information and talk. (What do/did you like or dislike about your current or former position?)
•
Avoid becoming too chatty or friendly.
11

•
Have a plan and perhaps a script.
•
Make the interviewees talk.
•
Use behavior based inquiries:
 When have you_____?
 Give me an example when you _____?
12

• Job descriptions need not cover every possible credential in a job description.
•
Hiring applicants who have additional relevant skills that are not listed in the job description is not discrimination as to other applicant.
• The best comparison of employees is how they meet and exceed the job description, not each other.
13

• Have you captured the physical and technological portions of the job?
•
For supervisory job descriptions, the emphasis should be on personnel management and communication skills, including written communication skills.
• If meeting and communicating with the public is required, do not forget public presentation skills.
14

• A BFOQ is a qualification reasonably necessary for an individual to possess in order for that individual to perform the essential functions of the job (e.g., ability to lift a certain weight).
•
Permits employers to consider membership in a protected class as a plus or a minus depending on the circumstances.
•
Burden is on the employer to establish the basis for the BFOQ. Courts will review closely.
15

•
Better to use vetted application forms rather than compare resumes.
•
Critical that application forms solicit only job-related information.
•
Periodically review and update the application forms.
•
Implement a policy limiting the duration that an application remains active.
•
Require the applicant to certify that all information on the application is accurate.
• Be careful with unsolicited resumes and walk-in applications.
16

• The law permits employers to use employment tests.
• Must be job-related (or measure necessary performance indicators).
• Must not present adverse impact issues (screen out a disproportionate number of members of a protected class).
• Ask questions before adopting any test in the selection process.
 Does the test measure or predict job performance?
 Does the test measure significant duties or responsibilities (or the skills necessary to accomplish the tasks)?
 Gender bias in physical fitness testing.
17

•
A facially neutral employment selection technique which disproportionally disadvantages a protected group.
• Defensible if job related and consistent with business necessity.
• Even if necessary, a question remains as to whether the employer is using the least discriminatory alternative available.
• All applicants must take the same test.
18

• Generally, job requirements for a position do not need to be bargained. Harrison Township Water Authority ,
29 PPER 29020 (1997).
•
You may have an impact bargaining requirement if the union asks for it. Hamburg Police Officers Assoc. v. Borough of Hamburg , 37 PPER 121 (2006).
•
Managerial standards are not bargainable because they are an inherent managerial prerogative.
19

• Consent.
•
Release of liability.
•
Pennsylvania privilege to provide job references in good faith.
•
Fair Credit Reporting Act (if third-parties involved).
20

• Can never rely upon arrests as a reason to say no to an applicant. 18 Pa. Cons. Stat. § 9125.
•
Can refuse to hire if based upon a conviction.
 Must be a felony or a misdemeanor.
 Must relate to suitability for employment.
 Must advise applicant that conviction played a role in decision.
•
Special Employer requirements.
21

The EEOC recognizes that employers have legitimate reasons to conduct criminal background checks and that Title VII of the Civil Rights Act of
1964 (Title VII) does not specifically prohibit or give instructions on how an employer can utilize criminal background records.
However, the EEOC has concluded that racial minorities are disproportionately convicted of crimes compared to non-minorities.
In 2012, the EEOC released extensive updated Guidance on how employers are to use criminal conviction and arrest records in order to comply with Title VII. The EEOC’s Guidance makes clear that the EEOC will not look favorably on across-the-board criminal background exclusions.
22

While the EEOC takes the view that criminal background checks will almost always have a disparate impact against African-Americans or
Hispanics, the Commission provides two avenues for employers to defend such usage:
Formal Validation
The first route is for an employer to formally validate the job-related business justifications for using such a practice. Because such formal validation studies require the use of industrial and organizational psychologists and are generally costly, and because of lack of precedent in validating the use of criminal background information, formal validation is not currently viewed as a viable option for employers.
23

Targeted Screen
The EEOC’s alternative route to justify the use of criminal background information requires an employer to conduct a targeted criminal background screen and engage in an individualized assessment of persons with criminal background records.
The targeted screen of individuals with criminal records involves looking at three factors, referred to as the Green factors: 1) the nature and gravity of the offense or conduct; 2) the time that has passed since the offense or conduct or completion of a criminal sentence; and 3) the nature of the job currently held or sought. Green v. Missouri Pac. Railroad , 523 F.2d 1290
(8th Cir. 1975).
24

Individualized Assessment
The EEOC’s Guidance strongly recommends that employers conduct an individualized assessment following the targeted screen with the goal of providing a person with a criminal record the opportunity to demonstrate that the employer’s targeted screen (i.e., exclusion) should not apply to him.
25

The Guidance lists eight possible topics of consideration as part of an individualized assessment, including these three:
The facts and circumstances surrounding the offense or conduct;
Evidence that the individual performed the same type of work, postconviction, with the same or a different employer, with no known incidents of criminal conduct; and
Employment or character references and other information regarding the individual’s fitness for the particular position.
26

•
Can test for illegal substances prior to an offer being made.
•
Can require pre-employment physical examination after an offer of employment is made.
27

• Avoiding “regarded as” claims against applicants with known or perceived disabilities.
•
Past drug/alcohol use and the ADA.
•
Lawfully prescribed drugs in drug testing.
28

•
Employers may inquire into present illegal drug use and prior casual drug use (Have you ever used illegal drugs?) but cannot ask about past addictions because treatment for recovering addicts are covered by the ADA.
29

•
Employers may not administer an alcohol test to applicant but may inquire about past alcohol use so long as employer again does not ask about past addictions because treatment for recovering addicts are covered by the ADA.
30

•
Can an applicant be tested post-offer? Does that change anything?
•
Can someone refuse a test at the post offer stage without consequences?
31

•
A manager interviews an applicant. His credentials are stellar. Only one problem — he hates him. He finds him obnoxious and arrogant. Can he reject him on this basis?
32

•
A manager interviews an applicant. He satisfies all of the technical and educational requirements for the job. However, he has trouble speaking English. Indeed, the manager has trouble understanding him and he appears to be having trouble understanding the manager. Can the manager deny him the job based on this communication problem?
33

•
Two applicants apply for the same job. Both applicants satisfy all the minimum requirements for the job. In fact, one appears overqualified. Previously, he was a mid-level manager. The position for which he currently is applying is an entry-level supervisory position. Can the manager lawfully consider his "overqualification?"
34

•
The hiring manager has narrowed the field of contenders to two applicants. Both meet the minimum requirements of the job. Both appear equally qualified. One is a woman of color. The other is a white man. Can the manager pick the woman of color over the white man where both are equally qualified in order to satisfy diversity goals?
35

•
During an interview, an applicant discloses that he lost his last job because of misconduct due to active alcoholism. However, he assures the manager that he is in recovery now and has been sober for more than nine months. Is his alcoholism, albeit inactive, relevant to his application for employment? Would the answer be different if he disclosed he recently had chemotherapy?
36

The job description indicates that an applicant must have a minimum of six years prior supervisory experience. One applicant has seven years. The other applicant has eleven years. The applicant with seven years is selected. Any legal problem?
37

•
The job description requires that the successful applicant have a college degree. Joe does not have a college degree; therefore, he is denied an interview. Joe argues that a college degree is not necessary. He also argues that his experience is the equivalent of having a college degree, and therefore, his application should be considered. Must it be considered?
Can it be considered?
38

•
Jane arrives for her interview for the receptionist position wearing a tank top and torn jeans. When you sit down to conduct the interview, you begin to notice that her body odor is offensive. Can you consider her dress and poor smell when deciding whether to hire her? What if Jane had a nose ring? Or dreadlocks?
Could we consider? Is it lawful to tell Jane that if she is hired, she must remove the nose ring and change her hair?
39

Eckert Seamans Cherin & Mellott, LLC
•
Michael McAuliffe Miller mmiller@eckertseamans.com
717.237.7174
•
Kevin M. Skjoldal kskjoldal@eckertseamans.com
717.237.6039
40