HIRING: BEST PRACTICES
AND LEGAL PITFALLS
Drew Bracken
Ahlers & Cooney, P.C.
100 Court Avenue, Suite 600
Des Moines, Iowa 50309
(515) 243-75611
dbracken@ahlerslaw.com
I. JOB DESCRIPTIONS
The single most important document for
human resources management s.
The job description should be the
touchstone for every decision affecting
any individual’s employment including
hiring, performance evaluation,
discipline, and discharge.
B.
Essential Elements.
1. Job Classification.
2. Job Functions or Tasks
3. Job Qualifications and Requirements
4. Working Conditions
II. NOTICE OF VACANCIES - PUBLIC EMPLOYERS
A. Veterans Preference Requirement
– Iowa Code Section 35C.1
1.
In every public department and upon all
public works in the state, and of the counties, cities,
and school corporations of the state, veterans are
entitled to preference in appointment and
employment over other applicants of no greater
qualifications.…
2.
The application form shall contain an
inquiry into the applicant's military service .
...
3. In all jobs of political subdivisions of the
state, public notice of the application
deadline to fill a job shall be posted at least
ten days before the deadline in the same
manner as notices of meetings are posted
under section 21.4.
B. Other Internal Requirements
•
Union contracts
•
Other internal requirements in the form of
policy or handbook may exist and should
be followed.
III.
ADVERTISEMENT
A.
Federal Mandates
B.
Cast a Wide Net
C.
Word-of-Mouth
IV. EMPLOYMENT APPLICATIONS
A.
Unsolicited Applications
B.
Form and Content
1. Nondiscrimination Policy Statement
2. Personal Information
3. Information Regarding the Job Being Applied
For
4. General Information
5. Work Experience
6. Educational experience
7. Verification and Release
V. SCREENING APPLICATIONS
A.
Set Deadline for Applications
B.
Screening Unqualified Applicants
C.
Selecting Interview Candidates
D. Documentation
VI. PRE-EMPLOYMENT INQUIRIES/INTERVIEWS
A. Purposes.
Pre-employment inquiries are designed for one
purpose--to elicit information from which an
intelligent employment decision can be made.
Questions which are not relevant to the employee
selection process should be avoided.
B. Problems Areas
As a general proposition, many inquiries are
not unlawful per se.
However, if a negative employment decision
is made, the absence of a legitimate reason
for making the inquiry can constitute
evidence that the employment decision was
made with discriminatory intent.
 Questions as to race, sex, religion, national origin,
or age.
 Questions as to marital status, children, child care
responsibilities, intentions as to pregnancy or
birth control.
 Questions as to height, weight, etc.
 Questions as to arrest records.
 Questions as to economic status such as credit
information or prior bankruptcy or garnishments.
 Questions about religious views or associations.
 Questions about other personal matters.
C.
Uniformity to the Review and
Interview Processes in Order to
Prevent Discrimination Claims
D. Disability Discrimination
At the interview stage (prior to the offer of
employment), an employer may not ask any
disability-related questions or require any
medical examinations, even if they are related
to the job.
However . . .
• However, where an applicant has an obvious
disability, and the employer has a reasonable
belief that he/she will need a reasonable
accommodation to perform specific job
functions, the employer may ask whether the
applicant needs a reasonable accommodation
and, if so, what type of accommodation.
The regulations implementing the ADA state that
the following questions may not be asked as part of
the employment application process:
▸ Have you ever had or been treated for any of
the following conditions or diseases? (followed
by a checklist)
▸ Have you ever been hospitalized? If so, for
what condition?
▸ Have you ever been treated by a psychiatrist or
a psychologist? If so, for what condition?
• Is there any health-related reason that you
may not be able to perform the job for which
you are applying?
• ▸ Have you had a major illness in the past
five years?
• ▸ How many days were you absent from
work last year because of illness?
▸
▸
▸
▸
▸
Do you have any physical defects which prevent
you from performing certain kinds of work? If yes,
describe such defects and specific work limitations.
Do you have any disabilities or impairments which
may affect your performance in the position for
which you are applying?
Are you taking any prescribed drugs?
Have you ever been treated for drug addiction or
alcoholism?
Have you ever filed for workers' compensation
benefits or had a work-related injury?
E. Preparation and Control of the Process.
Managers, supervisors and other
employees who are involved in the
interview process or in the process of
obtaining reference checks should be
trained and required to prepare written
outlines/questions in advance that
comport with best practices.
VII. SELECTING THE SUCCESSFUL CANDIDATE
A. Evaluating the Applicants
Using the job description as the
touchstone, the applicants should be
screened following the interview process
to determine which candidate is best
qualified for the position.
B. Reference Checks.
Reference checks should avoid inquiry into
areas that are not job related.
C. Immunity from Civil Claims.
Iowa Code Section 91(B)(2) provides that an
employer who provides work-related
information about a current or former
employee in response to a request made by a
person who is believed to be a representative
of a prospective employer is immune from
civil liability.
D. Criminal Background Checks and other
Background Checks.
Employers should also conduct criminal background
checks and check other publicly available resources
and do so in an organized fashion either internally
or through and external contractor.
Information obtained from these sources may be
the subject of follow up questions for the applicant.
2. Checks performed by outside contractors.
The Federal Trade Commission (FTC) considers
background check information to be a
“Consumer report” subject to the requirements
of the Fair Credit Reporting Act (FCRA).
When employers use consumer reports to make
employment decisions, including hiring,
employers must comply with the FCRA.
Before an employer gets a consumer report, the
employer must:
a. Tell the applicant or employee that the
employer might use information in their
consumer report for decisions related to their
employment.
b. Get written permission from the applicant or
employee.
c. Certify compliance to the company from which
the employer is getting the information that the
employer:
notified the applicant or employee and obtained
permission to get a consumer report;
complied with all of the FCRA requirements; and
will not discriminate against the applicant or
employee or otherwise misuse the information.
d. Before an employer rejects a job application or
takes any other adverse employment action based
on information in a consumer report, the employer
must give the applicant or employee:
• a notice that includes a copy of the consumer
report relied on to make the decision; and
• a copy of A Summary of Your Rights Under the
Fair Credit Reporting Act.
• NOTE: Giving the person the notice in advance
gives the person the opportunity to review the
report and confirm or deny if it is correct.
E. Disability Discrimination Issues.
If a person who is contacted for a reference
check brings up the issue of the applicant’s
medical condition or disability,
the hiring employer should state the
employer’s commitment to provide a
discrimination-free workplace, including the
making of reasonable accommodations to
disabilities.
VIII. POST-OFFER PRE-EMPLOYMENT CONDITIONS
A. Physical Exams.
Title I of the Americans with Disabilities Act of
1990 (ADA) limits an employer’s ability to make
disability-related inquiries or require medical
examinations but ….
allows certain post offer inquiries. At this stage of the
hiring process (after application is given a
conditional job offer, but before he or she starts
work), an employer may ask disability-related
questions and conduct medical examinations,
regardless of whether they are related to the job,
as long as it does so for all entering employees in
the same job category.
• The ADA allows certain post offer inquiries.
After application is given a conditional job
offer, but before he or she starts work, an
employer may ask disability-related questions
and conduct medical examinations, regardless
of whether they are related to the job, as long
as it does so for all entering employees in the
same job category.
B. Drug Tests.
1. The Omnibus Transportation Employee
Testing Act of 1991 applies only to
employees who are required to have a
commercial driver’s license for their job.
The test may be administered at any time
prior to the first time the employee
performs safety-sensitive functions for the
employer.
• At the option of the employer, preemployment testing may be conducted during
the hiring process or immediately before the
employee begins performing safety-sensitive
functions. The pre-employment test may be
administered through a third party.
QUESTIONS?