Employment Practices
Disclaimer:
This material is designed and intended for general informational purposes only, and is not
intended, nor shall it be construed or relied upon, as specific legal advice.
INTRODUCTION
Hiring new employees can often be a stressful encounter
for employers. Filling a job vacancy is not normally a daily
task for employers, and therefore, many are not
comfortable with performing a task which occurs on such an
infrequent basis. Whether it is the unfamiliarity with the
hiring process or fear of being caught up in one of the hiring
nightmares documented in management resources, many
employers prefer almost any task other than hiring a new
employee.
Having a well-defined hiring process can significantly
reduce this stress of hiring individuals who may be a liability
risk to the employer. This liability risk may be from hiring
individuals that either feel their rights were violated because
of pre-employment inquiries or from hiring individuals that could affect the well-being of other
employees or customers. An employer must find balance between protecting an employee’s
rights and maintaining its interest in obtaining a “qualified” employee from the list of applicants.
The employer is somewhat limited as to the source of information available for prospective
applicants. The primary source of information is that which is provided by the applicant; usually
on the resume job applicant or during the interview. Background checks and pre- and post-offer
job tests are often used to validate applicant-provided information. Background checks of
previous employers and professional references can also be good indicators as to the success
of the applicant “fitting in” the organization. Employers should, however, be aware that
background checks, post-offer job testing, and applicant-provided information could still fail to
provide an accurate picture of the applicant.
Various sources indicate that 30 percent to 80 percent of resumes and applications contain
false information. While most of these errors are oversights like an incorrect date of
employment, incorrect telephone number or address, etc., “puffing up” successes in previous
jobs or touting unearned credentials to gain an advantage in the hiring process is too often the
reason for the false information. References provided by the applicant or prior employment
contacts either do not have requested information, are not permitted by company policies to
share employment information, or are reluctant to share employment information for fear of
slander or libel suits or personal injury. Post-offer screening tools can provide a means of
selecting the “desired” candidate, but these tools come with their own problems. Federal and
state laws vary on the legality of drug testing, polygraphs, and psychological testing.
The need to obtain accurate hiring information is most often dictated by the job position and the
potential exposure to the employer from the employee. An applicant’s prior criminal history of
sexual abuse with children or illegal drug use may not be important for a secretarial position in a
manufacturing company, but it would be very useful if the applicant is applying for a caregiving
position at a child day care center.
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This material should serve as a guide for various measures that can be used to achieve a
balance between these competing interests during the entire hiring process, from advertising
the position to hiring the desired applicant.
IDENTIFICATION OF A SPECIFIC INDIVIDUAL FOR HUMAN RESOURCES
FUNCTIONS
The issues facing employers today are growing ever more complex.
IT IS YOUR
RESPONSIBILITY to be aware of all such issues, laws and regulations and take appropriate
action to minimize potential liability. Given the complexity, it is critical that a specific individual,
or department, has the Human Resources function with responsibility to access these changing
requirements and implement appropriate procedures. This is the person who must sign the
insurance application and to whom we will direct risk management information. It is also the
person who should be designated to receive and investigate all employee complaints and to
review all employer initiated terminations. Supervisory personnel must be informed in writing of
their responsibility to provide you with prompt notice of any claims, incidents or allegations.
EMPLOYMENT LAWS
Several federal and state laws have been passed over the years to protect employees in the
work force. In addition, the courts continue to interpret these laws and regulate on an everbroadening basis. Ignorance of the law is not a defense when a company is accused of
employment discrimination by an applicant or employee. An employer must be aware of laws
and regulations before conducting even one interview. Once a complaint is filed by an
employee or applicant who feels he or she has been discriminated against, the employer must
prove that there was no discrimination. Violation of the law can result in severe penalties; even
if found innocent of the charge, defending the case can be costly in terms of both time and
money. It is highly recommended that a thorough and complete search for other employment
laws, especially state and local laws, should be conducted to ensure full compliance with fair
labor practices.
Most states have a basic fair employment practices law that prohibits discrimination in
employment on the basis of race, color, religion, sex, age, and national origin. Some states also
prohibit employment discrimination in additional categories such as handicap, pregnancy,
marital status, sexual orientation, smoking, and genetic and/or AIDS testing. Family or parental
leave requirements may also be addressed at the state level. State laws are, in many
instances, more comprehensive than the federal statutes.
In addition to being broader in scope, the state laws often extend to smaller employers. While
Title VII only applies to employers of 15 or more employees, some state FEP laws cover an
employer with only one employee. The state laws may also apply to public employers and to
contractors doing business with the state. In addition, many laws also apply to unions and
employment agencies, as well as apprenticeship and training programs.
It should also be noted that some local jurisdictions impose prohibitions against employment
discrimination, generally by exclusive order. New York City, for example, has a very active
Human Rights Division as a city agency authorized to receive and process employment
discrimination complaints. Local government should be contacted to determine if local
employment laws exist in its business locations.
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A list of some applicable employment laws is provided below; however, EMC Insurance
Companies highly recommends your company consult with competent legal counsel familiar
with employment law when developing employment policies and procedures for hiring new
employees.
•
Fair Labor Standards Act (FLSA) of 1938
•
The Equal Pay Act of 1963
•
The Civil Rights Act of 1964, Title VII
•
Age Discrimination in Employment Act of 1967
•
Executive Order 11246
•
The Civil Rights Act of 1971
•
Title IX of the Education Amendments of 1972
•
Rehabilitation Act of 1973, Section 503
•
Employee Retirement Income Security Act (ERISA)
•
1978 Pregnancy Amendments to the Civil Rights Act of 1964
•
The Civil Rights Act of 1991, Title VII
•
Immigration Reform and Control Act of 1986
•
Americans with Disabilities Act of 1990
•
Older Workers Benefit Protection Act of 1990
•
Family and Medical Leave Act of 1993
•
Vietnam-Era Veteran’s Readjustment Assistance Act of 1974
Additional information can be obtained on employment practices and laws by referring to the
following websites:
www.employerprotection.com/emc - sample employment policies
www.eeoc.gov - employment law information on FMLA, civil rights, ADA, etc.
TRUTH-IN-HIRING CLAIMS
Truth-in-hiring claims come in various legal packages generally referred to as promissory
estoppels or fraud claims. A truth-in-hiring lawsuit can occur simply because of the pressure to
recruit successfully.
Fraud is a misrepresentation of a past or present fact. In the hiring process, it means any
material misrepresentation about the job or the employer. During the interview process, an
interviewer may be tempted to engage in puffery to entice a candidate to take a position or to
make promises or assurances about the job duties the specific role, or the reporting relationship
the applicant will have in the organization. The interviewer may suppress facts or tells halftruths in response to questions about the company’s financial condition, the reasons why a
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position is vacant, the percentage of a budget allocated to the applicant’s line of business, the
company’s commitment to a line of business, or camaraderie among the management and staff.
Based on these statements, the applicant accepts the position and leaves an existing job or
declines other positions. Were the statements true? If not, then the employer and the
interviewer may have exposure to fraudulent concealment claims.
•
The interviewer should be sure the descriptions of job duties and responsibilities are
accurate.
•
Although “puffing” and exaggeration are allowed in the marketing of products and
services, overstatements about a job’s duties, the company’s financial condition, the
reason for vacancies, or the relationships within a department should be avoided.
•
Predictions should not be made about the financial health of the company or department
in which the applicant will work. Historical data is the best avenue to follow. If a
turnaround situation is involved, say so and make that a challenge for the applicant. Do
not sugarcoat a bad situation.
•
The offer letter should state the job title, confirm the monthly or hourly salary (not
annual), start date, location, and a reminder to bring a picture identification and social
security card. It should also be noted that this letter is not an employment contract, but a
letter confirming the offer of employment.
NEGLIGENT HIRING, RETENTION, AND SUPERVISION
Employers are facing an increasing number of claims from creative plaintiffs’ attorneys alleging
that the employer negligently hired, supervised, or retained an individual who the employer
knew, or reasonably should have known, turned out to be a threat to him/her or to other
employees, or was likely to engage in wrongful conduct. The problem can be depicted as
follows:
An employee is seriously injured after he is run over by a forklift operator who was
drunk at the time of the accident. The forklift operator has been fired from previous jobs
for alcoholism and now the injured employee is threatening to sue the company.
A successful claim will include these elements: (1) the existence of an employment relationship
at the time of the injury; (2) as a result of the relationship, the employee and injured party met;
(3) the employee was unfit and posed a risk to the people with whom he was in contact; (4) the
employer knew or should have known that the employee was unfit; (5) the employee caused the
injury; and (6) the employer’s negligence in hiring the employee was the proximate cause of the
injury.
In order to avoid this situation, employers must perform proper reference and background
checks. These checks may include but are not limited to professional reference checks and
background checks including previous employers, motor vehicle records (MVR), court checks,
federal criminal search, credit search, and preemployment drug screen, depending on job duties
and responsibilities.
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NONCOMPETITION AGREEMENTS
Employers often impose noncompetition obligations on their employees. These obligations are
often used for sales, marketing, computer, and high level managerial positions. Violations of
these obligations increasingly have resulted in litigation. As a result, in the interview process,
and possibly on the application, an employer should inquire about an applicant’s noncompetition
obligations. If the applicant misrepresents these obligations, the hiring employer obviously has
a valid basis for rescinding any offer.
If the applicant indicates there are obligations, then the hiring employer should evaluate the
extent of these obligations and whether they are enforceable by the employer that imposed
them. It is better to know this information in advance so a strategy can be developed to deal
with noncompetition issues.
Conversely, if the hiring employer wishes to impose noncompetition obligations on an applicant,
this issue is best dealt with at the hiring stage. Imposing noncompetition agreements at the time
of hire helps to avoid legal issues regarding the validity of those agreements.
Drafting effective covenants not to compete is a difficult legal process best left to legal counsel.
The proper scope of the agreement (both geographically and temporally), as well as the
consequences of breach, consideration to be offered, and even the need for an agreement,
must all be considered before drafting even begins. Given that the consequences of a poorly
drafted agreement might be reliance upon an agreement that is rendered ineffective just when it
is needed most, employers should consult legal counsel before presenting noncompetition
agreements to their employees.
WORKPLACE VIOLENCE
A flick of the television switch is all it takes to see how violence has permeated the workplace. It
is imperative for employers to understand the magnitude of the problem and implement
methods to prevent and minimize violence in the workplace. Employers have many options in
combating workplace violence: (1) become better hirers; (2) train employees in violence
avoidance methods and early warning signs, and (3) develop company-wide violenceprevention procedures.
Become Better Hirers
As mentioned previously, an employer should seek to hire people not inclined to such
behavior. The question becomes, “How can an employer select employees who are not
prone to violence?” The answer is that an employer cannot in all circumstances select
nonviolent employees, but the employer can take proactive steps to minimize the selection
of such persons – check professional references, perform background checks, administer
psychological testing, and become better interviewers.
Employees responsible for interviewing new hires must become adept at identifying
potentially violent employees. Interviewers can ask behavior-based questions that test how
applicants would react in a given situation, e.g., “What types of problems have you had with
former supervisors?” and “How have you handled these situations?”
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Early Warning Sign Training
In addition, managers should be trained to recognize warning signs and to defuse a
potentially violent situation. Warning signs include, but are not limited to:
1. direct or veiled threats of harm
2. intimidating, belligerent, harassing, bullying, or other inappropriate and aggressive
behavior
3. numerous conflicts with supervisors and other employees
4. bringing a weapon to the workplace or fascination with guns
5. statements showing fascination with incidents of workplace violence or statements
indicating approval of such behavior
6. statements indicating desperation
7. extreme changes in behavior
None of these warning signs should be ignored. It is crucial that managers document this
behavior because proper documentation will support any responsive management action.
On the other hand, employers should not “profile” employees by suggesting that persons
with certain characteristics are prone to violent behavior.
Violence Prevention
Every employer should develop policies and procedures that specifically address violence in
the workplace. These policies should convey the following:
1. that all employees are responsible for maintaining a safe work environment;
2. that the policy covers not only physical acts but harassment, intimidation, and
disruptive ridicule; and
3. that the employer will act promptly to stop inappropriate behavior.
Additionally, the employer may want to consider using an Employee Assistance Program
(EAP). An EAP may give an employee an outlet to express his workplace frustrations as
well as give some measure of control over the work environment.
Due to the various and often competing duties owed by the employer toward various parties,
the employer must use caution. If an employer fails to take action when confronted with
violence, it may expose itself to a negligent hiring or retention lawsuit. On the other hand, if
the employer acts without knowing all the facts, it may risk lawsuits, including a defamation
or ADA action.
While the ADA protects disabled persons otherwise qualified to perform the job with or
without reasonable accommodation, an employee could argue that his/her violent behavior
resulted from a mental impairment. When confronted with this issue, courts will often side
with the employer, reasoning that the ADA protects discrimination on the basis of a
disability, but not the behavior or conduct resulting from the disability.
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JOB/POSITION ADVERTISEMENTS
Understandably, advertisements and brochures must present a positive image of the recruiting
employer and encourage the applicant to join the company. However, an advertisement or
brochure must truthfully reflect the job opening and the terms applicable to it, and must not
conflict with the disclaimers or statements contained in the employment application.
Although an at-will employer need not state that fact in an advertisement or brochure,
statements about job security should not be made unless they are factual, and then should be
couched in language indicating that previous events are not a predictor of what may happen in
the future.
•
Avoid using descriptions implying that a job is secure (i.e., words such as “long-term
growth,” “permanent,” “secure,” or “career path”). The use of words like “salaried,” “fulltime,” or “regular” is preferable because these words minimize the inference that longterm tenure is being provided.
•
Rather than using terms like “job security” or “secure employment,” cite favorable
statistics or employees’ average length of service.
•
Take proper steps to ensure that advertisements and brochures are properly worded to
comply with various federal and state laws. The Department of Labor has published an
Interpretative Bulletin stipulating the “help wanted” notices or advertisements containing
statements such as “must be 18,” “age 25 to 35 preferred,” “recent college graduate,”
“sales trainee, any recent degree,” and “sales executive, 2 years out of college,”
discriminate against older persons protected by federal law and most state laws.
However, each of the above phrases can be artfully worded to avoid age discrimination
problems. For example, use the phrase “college degree in business required” rather
than “recent college graduate,” or “recent experience in sales work preferred” rather
than “recently graduated person with sales interest.”
•
Make a positive statement in all advertisements and brochures about the company’s
compliance with antidiscrimination laws.
•
Avoid overstating the job’s responsibilities or status.
•
Be sure that all job requirements are directly job-related. In advertisements and
brochures, avoid statements that would disqualify persons for lack of a formal education,
if education is not relevant to the job. Ultimately, in the job interview process; the bestqualified applicant will be selected. There is no need to make statements in
advertisements and brochures which exclude applicants.
SAMPLE HIRING CRITERIA
Minimum criteria and requirements for hiring should be included in the advertisement/brochures.
The following are examples of hiring criteria:
Job #1: Commercial Driver
•
Must have a Class A CDL with HAZMAT endorsement.
•
No chargeable accidents in the past year.
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•
No more than two “non-serious” moving violations in the past three years.
•
No DUI or DWI convictions in the past ten years.
•
Applicants must have a minimum of one year of verifiable driving experience.
•
Must pass a DOT physical.
•
Must pass a preemployment drug test.
Job #2: Elementary Teacher
•
Must have an elementary teacher license with special education endorsement.
•
Must pass a Function Screen Test for verifying capability of performing physical
demands of the job.
•
Must not have any felony convictions for sexual contact with minor children.
•
Must pass a preemployment drug test.
Job #3: Municipal Lifeguard
•
Applicants must be at least 16 years old.
•
Must have a valid water safety/lifeguard certification from a recognized organization.
•
Must not have any felony convictions for sexual contact with minor children.
Job #4: Fireman, Entry Level
•
Must not be convicted of any felony (A record of criminal conviction will not
necessarily bar an applicant from employment; factors such as age at time of
conviction, passage of time since conviction, seriousness and nature of violation in
view of job for which you are applying shall be considered.).
•
Required not to have substantiated current use of any illegal drug as defined by
Federal and or State law, or illegal use of a controlled substance; not have used or
been involved in any illegal act involving the use of marijuana or hashish within the
last year; not have used or been involved in any illegal act involving the use of
cocaine, crack, or speed within the last three (3) years; not have been involved in
any use or illegal act involving narcotic drugs such as heroin, LSD, PCP, etc.
•
Required to attend any scheduled interview, examination, appointment, or meeting
relative to this process.
•
Must have a driving record that is in accordance with personnel administrative
instruction No. 506, driver’s license records check.
•
Need to meet minimum standards on the aptitude test.
•
Must be at least eighteen (18) years of age.
•
Must not have a “founded” child abuse or neglect complaint.
•
Need to successfully complete the physical agility examination.
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•
Employment background check should indicate that the applicant’s previous work
performance or conduct is acceptable.
•
Successful completion of a physical examination.
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EMPLOYMENT APPLICATIONS
The employment application is one of the most cost-efficient ways to obtain relevant information
regarding a prospective employee and establish the basis for the employment relationship.
Employment applications can be a useful tool to communicate company policy to applicants for
employment and may be helpful in the defense of certain employment claims.
The application also creates important documentation for the employer as to the applicant’s
assertions; relied on in extending the employment offer. As such, it is important that if
application forms are used, the forms should contain the following pertinent information:
An application form should contain:
•
An employment-at-will statement if only an “at-will” relationship is desired.
•
An EEO statement.
•
Attestation to the truth of the information provided.
•
Declaration of post offer, preemployment physical, and drug screen, if any.
•
A waiver of all claims against the hiring employer and prior employer for all prior
employment background checks, including all oral and written information received.
Note: Authorization for background checks, including, but not limited to, professional references,
credit reports, and criminal felony conviction records should be obtained on a separate form, not
on the employment application.
An application should not include any discriminatory questions, such as:
•
Race or color
•
National origin or citizenship
•
Sex or sexual orientation
•
Marital status, children, pregnancy, intent to have children, child-care arrangements
•
Age
•
Religion
•
Disability
•
Arrest record
•
Credit history or home owner or tenant status
Information may be required by an employer to comply with Affirmative Action Plans (federal
contractors and subcontractors only), EEO reporting requirements, the I-9 INS Form or for
purposes of administering the company’s benefit plans. This information should, however, be
obtained after the person is hired as an employee, but not during the hiring process.
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AFFIRMATIVE ACTION PLANS
The primary source of affirmative action requirements for a private sector employer is Executive
Order 11246, a presidential directive, applicable to any firm having 50 or more employees and
doing at least $50,000 annual business with the federal government. Some state and/or local
governments may also impose affirmative action requirements on government contractors. The
courts also have the authority to order affirmative action programs as a remedy to redress past
discrimination in the hiring and promotion practices of an employer. If you are a government
contractor or subcontractor you are encouraged to review your compliance efforts with legal
counsel.
A sample employment application containing these provisions is included for reference.
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Log __________
SAMPLE EMPLOYMENT APPLICATION
-----------------------------------------------------------------------------------------------------------------------------------------------------------Our employment practices are in accord with the laws which prohibit discrimination due to race, creed, color, sex,
age, disability, sexual orientation, national origin or religion.
-----------------------------------------------------------------------------------------------------------------------------------------------------------If you need any assistance in completing this application, we will be happy to help you.
-----------------------------------------------------------------------------------------------------------------------------------------------------------WHAT INFLUENCED YOU TO APPLY WITH US?
□ Job Service
□ Website ________________________________
□ Company Employee ________________________
□ School Referral __________________________
□ Outside Referral ___________________________
□ Recruited on Campus _____________________
□ Newspaper Ad ____________________________
□ Employment Agency _____________________
□ Other _________________________________________________________
-----------------------------------------------------------------------------------------------------------------------------------------------------------Full Name: _________________________________
Social Security Number: __________________
Street Address: ______________________________
Home Phone Number: ____________________
City • State • Zip Code: ________________________
Work Phone Number: ____________________
Are you at least 18 years of age?
Yes
No
Hire is subject to verification you are of minimum legal age or are obtaining a work permit as required by law.
The Age Discrimination in Employment Act of 1967, as amended, prohibits discrimination on the basis of age with respect to individuals
who are at least 40 but less than 70 years of age. Our personnel practices will conform with applicable age discrimination laws.
Are you legally qualified to work in the U.S.?
Yes
No
If hired, you may be required to submit proof of U.S. citizenship or visa status.
Type of work desired ____________________________
Salary at which you would start $ __________
If offered employment, date available ___________________________
Have you previously worked at this company?
Yes
No
Do you have any relative(s) or significant other who works at this company?
Yes
No
If yes, name & relationship ______________________________________________________________
Have you ever been convicted for the violation of any law other than minor traffic violations?
Yes
No
If yes, please explain ___________________________________________________________________
------------------------------------------------------------------------------------------------------------------------------------------------------------
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EDUCATION AND TRAINING
Type of School
Name & Location
Major Subject(s)
Diploma or
Degree(s)
Overall Grade
Average
High School
Business School
or College
Other Education
or Training
If you have attended college, how many years? _____________________
CURRENT/PREVIOUS EXTRA-CURRICULAR ACTIVITIES AND OFFICES HELD
(you may exclude those indicating race, creed, color, sex, disability, national origin, or religion.) _________________
_____________________________________________________________________________________________
SKILLS: _____________________________________________________________________________________
Typewriter, Word Processor, Estimated WPM; __________
10-Key
Medical Terminology
Transcription
Word
Software
Military Service:
Legal Terminology
Yes
No
Excel
Other
Branch of Service: ____________________________________________
_________________________________________________________________________________________________________
EMPLOYMENT HISTORY
May we contact your past employers?
Yes
No
May we contact your present employer?
Yes
No
(Please list the present or most recent job first and work back.)
Employer
Title of your position
Address
Describe duties and skills acquired:
From: Month/Year
To: Month/Year
Name and title of supervisor
Telephone
Employer
Ending salary
Reason for leaving
Title of your position
Address
Ending salary
Describe duties and skills acquired:
From: Month/Year
To: Month/Year
Name and title of supervisor
Telephone
Reason for leaving
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Employer
Title of your position
Address
Describe duties and skills acquired:
From: Month/Year
Name
and
supervisor
Ending salary
title
To: Month/Year
of
Telephone
Reason for leaving
Please account for any periods of time during which you were not employed. (You need not explain health-related
items.)
-----------------------------------------------------------------------------------------------------------------------------------------------------------READ CAREFULLY BEFORE SIGNING
I understand that falsified information on or omissions from this application or other required documents shall be
considered sufficient cause for discharge or denial of employment.
I understand that my employment may be subject to a background investigation, including, but not limited to, a retail
credit report. I also understand I have the right to request, in writing, a complete and accurate disclosure of all
findings from the investigation within a reasonable amount of time from my application date. I; hereby release the
Company and its affiliates and its subsidiaries against any liability which might result from the Company making such
an investigation into my employment background.
Additionally, I understand that nothing contained in this employment application or in an interview is intended to
create an employment contract between the Company, or any Company affiliated with it, or for providing any benefit.
I further understand that no promise or guarantee is binding upon the Company unless made in the writing of a formal
document by the President & CEO, the Executive VP & COO, or the Executive VP for Corporate Development of the
Company. If an employment relationship is established, I understand that I have the right to terminate my
employment at any time, with or without cause, with or without notice, and that the Company, its affiliates, and its
subsidiaries retain the same right. Though salary may be expressed in hourly, monthly, or annual terms, the length of
employment is at-will for the employee and the employer.
Date: _________________________
Signature: _________________________________________________
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EVALUATING THE APPLICATION
While very few applicants intentionally misrepresent their identity, residence, or other
biographical data, 30 percent to 80 percent of all resumes contain false information.
1. Short residence periods or numerous or short-tenure jobs do not mean instability. Often,
applicants have legitimate explanations (e.g., illness or death in the family, school,
military, spouse relocation, etc.). Request clarification during the interview.
2. Do not draw conclusions about counterproductive behaviors based solely on the
applicant’s information (name, location of school attended, own/rent housing,
neighborhoods, etc.) To do so could cause the interviewer to develop an unintentional
racial bias.
3. Many applicants exaggerate the importance of past jobs/positions. This exaggeration is
most often seen in how former titles, job duties or responsibilities, and salaries are
reported on the application or in the resume. Questions pertaining to specific tasks or
how they might respond in certain situations should be considered.
4. Inaccuracies from guessing at dates of employment or failing to list jobs perceived to be
irrelevant should not be automatic disqualifiers. Follow-up questions often will resolve
the discrepancy.
5. Some applicants falsify dates of employment to hide deliberate job omissions
(dismissals for cause) or long periods of unemployment for unacceptable reasons
(jail/prison periods).
The interviewer should ask questions to resolve these
discrepancies in the employment dates.
6. There may be legitimate reasons why an applicant would accept a significantly lower
salary and compensation. Explore the reasons for accepting significant reductions in
income before concluding there is a problem with the applicant.
7. Minimizing or falsifying the real reason for the discharge are methods applicants use if
they have previously been dismissed for cause. To further explore suspect reasons for
leaving a job, you may want to ask the applicant, “What will your former employer say if
we talk to him/her?”
Applicant responses during the interview help to establish truthfulness. Observation of behavior
such as body language, vocal or verbal changes, can be useful later in the interview when
sensitive questions are asked.
When preparing for the interview, ask open questions to validate the applicant’s information and
allow for changes/contradictions to be made. Give the applicant an opportunity to “set the
record straight” by asking if there is any other information they may have forgotten or wish to
add.
Asking leading questions merely confirms what may be already deliberately
misrepresented.
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INTERVIEWING APPLICANTS
Before you begin the interviewing process, it is necessary to develop a strategy for selecting the
right candidate for the job. Employers often conduct interviews without a clear understanding of
the objectives of the hiring process. The position you are filling will usually dictate the type of
information needed and the format for selecting the best candidate. The lack of a strategy and
clear objectives often result in an interview that lacks focus and that does not promote the
ultimate goal of selecting the most qualified candidate for a particular position.
An effective interview should also secure a candidate’s commitment to performance, determine
whether a particular applicant is qualified for the position in question, identify future potential
and trainability, ensure compatibility with management and other team members, and reveal an
applicant’s strengths and weaknesses. The interviewer should strive to determine work ethic,
motivation, dedication, endurance, and eagerness to succeed. You cannot teach these
qualities– applicants develop them over the course of their professional career.
Select personal styles that fit and complement specific tasks and teams. Whether you are
considering bringing John Smith in as an executive of your company or hiring a new
receptionist, or anything in between, perhaps the most important thing you can do in an
interview is to determine whether or not the person matches your company’s corporate culture.
If he or she does, they will integrate easily into your company and instantly become a
contributing member. Employees who don’t resonate with your company’s culture will be at
odds with you from the very beginning. They will destroy morale, teamwork, and productivity
and will ultimately hurt the company.
There are obvious benefits to conducting a focused interview. An interview focused on a
particular job’s demands allows for an objective comparison of candidates, as well as
consistency between interview questions and position demands. All candidates are judged
against the same standards, which are related to the position in question. Be extremely careful
not to prematurely eliminate a candidate on the basis of personal biases or prejudices. Focused
interviews also allow the employer to concentrate upon a job’s true requirements, thereby
increasing the probability of selecting the most qualified applicant from a pool.
Techniques for the Skilled Interviewer
Few people are trained in interviewing job candidates, and fewer still are trained in
evaluating the information they obtain in the interview. Even though interviewing job
candidates is a prime function of managers, they are often unaware of the techniques
involved in the successful interview. The following is a list of the most common mistakes
made in interviewing:
•
First impressions. Interviewers often base judgments on superficial impressions
formed during the first few minutes of an interview, instead of a complete sample of
the candidate’s behavior.
•
Talking too much. Untrained interviewers often talk more than half the time. The
efficient interviewer should talk about 10 percent of the time. You learn nothing
about this person while you are talking. You know exactly what you need from an
employee–let the person show you that he/she has (or doesn’t have) what you need.
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•
Telegraphing. Interviewers “telegraph” the kind of response they want by telling the
applicant what they are looking for too early in the interview.
•
Asking “what if” questions. Hypothetical questions often lead to theoretical
answers. Candidates good on theory may be poor at following through on the job.
•
Competition. Interviewers make a mistake when they evaluate candidates solely in
relation to other candidates, rather than the ideal candidate for the position based on
the requirements of the job.
•
“Similar to me.” Instead of focusing on past performance, managers rate
candidates who are similar to themselves (in such things as age, education, work
experience, physical characteristics and interests) as “good” and those who are
different as “bad.”
•
Playing it safe. Since a manager’s own job rating may be affected by hiring failures,
the interviewer may select an adequate, but safe, candidate rather than risk a truly
exceptional performer who may be slightly offbeat.
•
The “halo” effect. A job candidate may have one overriding trait, such as good
communication skills or a commanding physical presence, which may influence other
areas of performance.
•
False assumptions. A type of bias that often has its origins in the interviewer’s own
experience. For example, an interviewer may believe that no one can succeed
unless he or she has had certain job experiences or a particular educational
background.
•
Stereotyping. An interviewer will often put candidates into certain groups and then
attribute all of the traits of that group to the individual.
Conducting the Interview
The end product of the interview process is to be able to select the most capable applicant
for the position needed for the company. To be successful, the requirements of the job and
the conditions of work must be communicated accurately and fairly to the applicant. A little
time spent preparing before the interview should reap rewards during the interview when a
candidate asks specific questions about the position for which he/she is interviewing.
During this process, the following should be clearly identified:
1. The essential functions of the job.
2. The relationship of these functions to the rest of the section, division, department, or
company.
3. The experience, education, or other qualifications required.
4. The nature of supervision the applicant can expect, and the reporting relationships
which exist for the position.
5. The general conditions of work (i.e., the hours of work, environment, travel
requirements, required tools and equipment (and if they are provided by the
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company), uniforms or dress code, flextime, overtime, comp time, rotating shifts,
etc.).
6. Salary and benefits.
7. The advancement or promotion potential of the position.
The interview should provide the candidate with a clear picture of the job. Planning and
having complete job descriptions for the open position would be most beneficial during this
hiring phase.
Evaluating Applicants
One of the hardest tasks during the hiring process is to evaluate the applicants. Several
proven methods exist, each with their own benefits and pitfalls. Consider each method and
select the most comfortable for you. You may even develop your own system by using bits
and pieces from each method. Regardless of the method, consistent use will develop
confidence that the best applicant is being hired for the job.
One method is for interviewers to make careful notes to distinguish between applicants,
record responses to questions, and document items of interest not on an applicant’s
resume. Once the interview process is complete, the notes can be referenced instead of
relying on memory to compare the strengths and weaknesses of each applicant.
Another particularly effective way of taking notes is through a standardized checklist
reminding the interviewer to ask questions about all relevant areas of an applicant’s
experience. Such checklists are particularly effective when combined with a point system
for evaluating applicants. Under a point system, the employer considers the attributes
desired in a successful applicant before beginning interviews. Each attribute, such as
experience, education, stability of employment, and apparent interest in the position is
assigned a certain point value depending upon the importance of that attribute to the job.
After the interview, each applicant’s score is then totaled by adding his/her points in each
category. Evaluating applicants in this fashion helps eliminate an interviewer’s potential to
give undue weight to how well a conversation went, instead of focusing attention on whether
an applicant is best qualified for the job.
Another method is to evaluate the candidate’s responses with a numerical rating system. If
an answer is excellent, give it three points. If it’s average, give it two points. And if it is
unacceptable, give it one point. This will give you a better indication of the person’s match
with your company than will your gut feelings, because it forces you to be objective. It also
helps you compare multiple candidates side-by-side at a later time.
Consistency throughout the entire hiring process is extremely important to ensure not only
fairness, but to provide a means for comparison.
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STYLE OF INTERVIEW QUESTIONS
The primary purpose of an interview is to gather information through a series of questions about
an applicant’s past education and work experience. To be successful, an interviewer must have
the ability to be flexible in using different questioning techniques. Different questioning styles
may be necessary depending on the situation. Listed below are several different styles of
questions. Examples are also provided on how they might be used during an interview.
Close-Ended Questions
Close-ended questions are the most commonly asked questions in interviewing. They are
also the most abused because they result in unclear responses (“Can you work under
pressure?”). Close-ended questions are faster than other types, but they provide less
information to interviewers, thereby making it more difficult to draw conclusions on the
suitability of the candidate for the position or to evaluate one candidate against another.
Close-ended questions can be used as a questioning technique when you are looking for
commitment (“Can you start this coming Monday?”) or when you are refreshing your
memory or verifying information from earlier in the interview (“You were with XYZ Company
for 5 years?”). Close-ended questions are also used when you have a series of questions
on the same subject.
Open-Ended Questions
Open-ended questions tend to elicit more information and therefore significantly restrict the
number of questions that can be asked in the allocated time established for interviewing
each candidate. Open-ended questions demand an explanation in response, so the
applicant being interviewed cannot get by with a monosyllabic answer (“How do you
succeed in working under pressure?”) This type question requires a detailed answer that
keeps the applicant talking and the interviewer listening.
While it may be important for some positions to hire an individual who has never taken
drugs, cheated on a test, or shoplifted, many jobs for which you will interview applicants
would not require a “squeaky clean” past. Additionally, it may be very difficult to find
applicants in a depressed labor market that have not made mistakes in their youth; such
applicants who have turned their lives around, but could disqualify themselves by being
truthful in an interview. At the same time, to determine if such an applicant continues to use
poor judgment, it certainly would be appropriate to formulate questions ahead of the
interview which follow established acceptance criteria.
Acceptance criteria consist of the following components:
•
Time. The period of accountability measured backwards in time (months/years) from
the moment of the interview.
•
Frequency. The number of occasions or incidents of the behavior under review
within the suggested time period.
•
Quantity. The amount (in dollars, pounds, grams, kilos, etc.), either cumulatively or
per event quantifying the admitted behavior within the suggested time period.
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•
Circumstances. The mitigating factors surrounding the specific behavior; for
instance, showed excessive anger during a previous reprimand.
Acceptance criteria can also be used to screen large numbers of applicants. When asking
closed-ended questions, the interviewer should start by broadly addressing the
topic/subtopic, then focus on the time periods suggested by the acceptance criteria. The
interviewer can dismiss an applicant as soon as a response does not meet the established
acceptance criteria. For instance, if the acceptance criteria states “no marijuana use within
the previous one year,” an interviewer can dismiss an applicant if they admit to using
marijuana 364 days ago.
Past-Performance Questions
Past performance or behavioral questions are based on the premise that past actions can
predict future behavior. The individual can be expected to do at least as well or as badly on
the new job as he/she did on the last job. Past-performance questions are open-ended in
nature, yet focus on requesting specific examples of past behavior (“Share with me about a
difficult project/tight deadline …” or “Give me an example of when ….” Past-performance
questions should be asked early in the interview, so that the applicant being interviewed
understands early on that he/she is expected to give detailed examples about the past and
will be less tempted to try “stumping” the interviewer.
Negative-Balance Questions
When interviewing, it can be tempting to believe that an applicant who is strong in one area
is equally impressive in all others. This can’t be further from the truth. Whenever you find
yourself becoming unduly impressed, try “That’s very impressive, was there ever an
occasion when things didn’t work out quite so well?” or the simple “Now can you give me an
example of something in this area you are not so proud of?”
Reflexive Questions
Reflexive questions help the interviewer maintain control of the interview. If an applicant
starts to ramble on about various experiences, it is easy to interrupt with a reflexive question
that will allow you to proceed with another topic. This is done by adding to the end of a
statement a phrase such as “Don’t you?, Couldn’t you?, Wouldn’t you?, Didn’t you?, Can’t
you?, or Aren’t you?” For example, a reflexive question may be used in a statement
sentence such as “With time so short, I think we should discuss your education, don’t you?”
The applicant’s reflex is to agree and the conversation moves on.
Loaded Questions
Loaded questions are frequently overused. While they can be useful to probe the
applicant’s decision-making ability, there is usually a fine line between absurdly loaded
questions (“Padding your expense report isn’t as bad as robbing a bank, is it?”) and carefully
balanced judgment call questions. ” One of the easiest and most effective ways to use
loaded questions is to recall a real-life situation where two divergent approaches were both
carefully considered, then frame the situation as a question, starting with, “I’m curious to
know what you would do if …” or “What would be your approach to a situation, where …?”
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Half-Right Reflexives
This technique is to make a statement that is only partially correct and ask the applicant to
agree. This style of questioning is used to smoke out the employee who always agrees with
the boss, the incurably incompetent, the oddballs who have a total resistance to giving
information, or the competent, but incurably tongue-tied applicants. You may get some
interesting responses when asking a question of this type.
Negative Confirmation
During the course of the interview, if you find it necessary to elicit more information as to
what the applicant may do in a certain situation, you can use a negative confirmation-type
question.
If the applicant told you that he/she had to drive a company vehicle excessively fast in order
to meet an appointment, you may ask how they might react in another situation to determine
if the applicant has other negative traits that could become a liability later.
Leading Questions
Leading questions are designed to lead the applicant toward a specific type of answer.
These questions often arise accidentally as a result of the interviewer explaining what type
of company the applicant will be joining. The interviewer might proudly explain, “We’re a
fast growing company here at XYZ and there is constant pressure to meet deadlines and
satisfy our ever-increasing list of customers,” then ask, “How do you handle stress?” The
applicant knows that to retain any chance of landing an offer he or she must answer a
certain way and consequently does so. This is not to say that leading questions are
inadvisable, but like closed-ended questions, they must be used appropriately.
Their best use is as information verifies, to get the applicant to expand on a particular topic.
For example, “Here at XYZ Company, we believe that the customer is always right. How do
you feel about that?” You should however, only use this technique once the candidate’s
belief or performance in a particular area has been established. In either case, leading
questions should not be used early in the interview or confused with somewhat
sophisticated, half-right reflective.
Question Layering
A good question poorly phrased will lose its bite and give you incomplete or misleading
information, but question layering can probe an answer thoroughly and on many levels. If
we go back to an earlier example of wanting to know whether a potential employee can work
under pressure, many interviewers would simply ask, “Can you work under pressure?” While
the intent is good, the question style is wrong for several reasons, primarily because it
requires only a yes or no answer, which tells you nothing, and it leads the applicant toward
the type of answer he/she knows you want to hear.
Instead, you should consider using all of the above styles, but in a way that peels back
different layers of truth until a topic has been examined from every angle. The interviewer
should ask who, what, when, why, where, and how by joining the close-ended question with
some other styles. For instance:
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•
“Can you work under pressure?”
•
“Tell me about a time when you had to work under pressure.”
•
“So, it was tough to meet the deadline?”
•
“How did this pressure situation arise?”
•
“Who was responsible?”
•
“Why was this allowed to occur?”
•
“Where did the problem originate?”
You should not accept an applicant’s first answer to any of your questions. These different
styles of questions can reveal a different aspect of the personality, performance, and
behavior of your candidate. You have a right and duty to your company to look closer when
something doesn’t feel right about the answer provided. If you feel something is lacking in
an answer, you should pursue it by layering your questions.
There are three additional techniques available to use to stretch a question further and
should be considered during the interview.
1. If you are either dissatisfied with the first answer and want more data, or are so
fascinated with the answer that you want to hear more, say “Give me some more
detail on that. It’s very interesting,” or, “Can you give me another example?”
2. You may hear an answer and add after it, “What did you learn from that experience?”
This is an excellent layering technique that can give you a handle on judgment and
emotional maturity, as well as give you more thinking and planning time.
3. Perhaps the best technique for gathering information is simply to sit quietly, looking
at the applicant and saying nothing. All mankind is embarrassed by a conversational
lull. This human frailty can be used to your advantage during an interview. The
applicant thinks, “Well, he’s not saying anything, so he must be expecting me to say
something else.” Even as the interviewer, you will find a little silence in the interview
difficult to manage at first, but it can pay substantial dividends in the long run.
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SAMPLE INTERVIEW QUESTIONS
Use the sample questions below to customize your own list of questions to ask of applicants
during the interviewing process. Use actual problems and experiences pertinent to the job.
Don’t just look for a “good” or “bad” answer; examine their thought processes and their
approach.
•
Give the applicant a problem to solve. “What would you do if you were closing the
business for the day and a customer wanted something special?”
•
Keep asking “Why?” Act like you are not satisfied with the answer to a question.
Keep in mind that you are buying, not selling, when you conduct an interview. You have the
right to be particular. The applicant should demonstrate selectivity, and not just appear to
be taking any job that comes along.
BIOGRAPHICAL
o
Have you (ever) gone by any other name?
EDUCATION
o
What is your educational background?
o
Did you graduate?
o
Why did you select your major?
o
Did you switch majors in school?
o
Would you choose the same major today?
o
What is your degree field?
o
What courses did you take?
o
Could we send for a transcript?
ƒ
Did you take any special classes or training courses you think would better
qualify you for this position?
MILITARY
o
Were you ever in the military?
o
Which branch(es) did you serve?
o
What years of service?
o
What was your rank upon separation/discharge from military service?
o
Where did you serve?
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o
What was your assignment?
o
Describe your duties and responsibilities.
o
Did you ever receive any Article 15s, Captain’s Mast, Company Punishment, or
Restriction?
o
Were you ever court-martialed?
EMPLOYMENT
o
Why are you seeking a job change?
o
What was your last job? What dates did you work?
o
What was your title/position?
o
What were your duties/responsibilities?
o
Who supervised you?
o
Why did you leave that job?
o
Before that job, where were you working?
o
Are there any other jobs you’ve had, (in the last __ years), that you forgot to put
down on your application? Tell me about them.
o
Have you (ever or in the last __ years), been told/asked to leave a job? If so, why?
o
If we call ________ /your former supervisor, what will he/she say was the reason you
left?
o
Describe the best person who ever worked for you or for whom you ever worked.
o
What kinds of people annoy you?
o
How do you think your previous experience ties in with the job we have open?
o
How did you gain your knowledge about this industry?
o
What type of suggestions would your former manager have for you?
o
If you could have made improvements in your last job, what would they have been?
o
What has been the most interesting job or project in your career?
o
What do you look for in a company for which you would like to work?
EMPLOYMENT DUTIES/PERFORMANCE
o
How would you describe your performance at your last position?
o
What do you like most about your current or previous job?
o
What do you like least about your current or previous job?
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o
How do you think you could improve yourself?
o
Have you (ever or in the last __ years), been written up, reprimanded, demoted, or
suspended? If so, why?
o
If we call ________ /your former supervisor, what will he/she say was the reason you
left? Were you disciplined there?
o
Tell me about the kind of customer contact you have had.
o
Describe a typical day.
o
How well did you perform against your quota in the past two or three years?
o
How did your performance rank in your company?
o
How did you handle customer complaints?
o
What questions do you have about the job?
o
What are you looking for in a job?
o
Why should I hire you?
o
Why do you want to work here?
o
What training or qualifications do you have for a job like this?
o
What do you think will be the most challenging aspect of this job?
o
Tell me more about how you will handle this aspect.
o
What prompts you to consider leaving your present job?
o
Tell me what you did when you were faced with a deadline and additional demands
were unexpectedly put upon you.
o
Describe some on-the-job pressure you experienced in your last position.
o
Have you ever performed duties that were beyond the scope of your job description?
o
Describe a time when you gained a client’s interest even though the client was
unresponsive at first.
o
Tell me about some situations in which you went the extra mile to satisfy a customer.
o
Tell me how you went about organizing your duties in your last job.
o
Describe situations in some of your jobs for which you had to reschedule your time.
o
What would you say if a customer said “Your price is too high.”?
o
What would you say if a customer said, “I am satisfied with my present supplier.”?
o
What would you say if a customer said, “We don’t need such high quality.”?
o
Who has been the most interesting client or customer so far in your career?
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o
If I gave you a deadline assignment while you were busy finishing another urgent
problem, how would you handle the conflict?
o
Can you tell me an instance when you thought it was necessary to ignore company
procedure in order to satisfy a customer?
o
When were you last responsible for doing this kind of work?
o
How were you able to demonstrate organizational skills or problem-solving skills in
your last position?
o
How might your skills be improved?
o
Describe a typical day on your present or last job.
o
What particular parts of past jobs did you enjoy most? In what areas of past jobs did
you have the most success?
o
What duties of your past jobs did you enjoy least? In what areas of past jobs did you
have the most difficulty?
o
How does the job for which you are applying relate to past job experience?
o
Describe a difficult (project, decision) or two you encountered in your past jobs. How
did you handle these situations? Were you satisfied with the results?
o
A type of problem that occasionally comes up in this position is ______________.
How would you handle a situation of this kind?
o
What are the abilities and qualities you see in yourself that will help you to be
successful in this position? Where do you think you might have some difficulty?
o
What aspects of this job do you anticipate liking the most? Having the most success
with? Dislike? Would you explain?
o
Tell me about your prior work experiences that you feel provide the appropriate
background for this job.
o
Tell me about a project in your last job that required you to use analytical skills.
o
Tell me about a risky decision you’ve made, how you weighed the risks, who you
involved in the decision-making process, and how you gained acceptance for it.
o
Describe a recent situation when you had to make a quick decision that made you
proud.
o
Describe a situation when you had conflicting work priorities. How did you resolve
the
conflict?
o
Describe an especially hectic day on the job and tell me what you did to alleviate
some of the confusion.
o
Describe a time when you were responsible for communicating a complicated
message. How did you ensure that the information was transmitted accurately?
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o
Tell me about the last time you successfully handled a dissatisfied, unhappy
customer (client)?
o
This position requires ______ (days of) travel per week/month.
problem for you?
o
Why will this job be different from others that you have held? Similar to?
o
What have you been praised for in the past two years?
o
What have you been criticized for in the past two years?
o
What does a supervisor do to get the best out of you?
o
Give me an example of a work crisis you were in and how you handled it.
o
What would you do if management made a decision you did not like?
o
How have you used your education in your past jobs?
o
What type of supervision do you prefer – close supervision with specific directions or
minimal supervision with general directions?
o
Are you more satisfied in a structured job situation or do you like the flexibility to
accomplish responsibilities in your own way? What are the personal qualities you
see in yourself that lead you to this preference?
o
Considering the duties of this job, which are you prepared to assume immediately?
Which will require some time for you to learn?
Will this be a
SHIFTS, JOB LOCATION, RELOCATION OR OTHER ASSIGNED DUTIES
o
This position requires occasional long/early days and/or
overtime/emergency/short-notice duty. Will this be a problem for you?
o
Did you ever work anywhere where they rotated shifts, where you had to stay late
once in a while, or were called in unexpectedly to help out?
o
Did you ever leave/quit a job because they rotated shifts or asked you to work other
hours?
o
How did/do you think you(‘d) feel when hours/shift were/are changed?
o
Were you ever asked to leave a job because you wouldn’t/couldn’t work different
hours?
o
Are you aware of anything that would prevent you from working different hours or
staying late?
o
During busy periods, would you be able or willing to go over to another unit/facility
and help out? If so, how long? If not, why?
o
Have you ever or in the last __ years worked for someone where you had to
periodically change work locations? When/where? How did you like it?
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o
Have you ever or in the last __ years left/quit a job because they moved you around?
o
How did or do you think you would feel if you were asked to help out at another
location either semi-permanently or on a regular, rotating basis without notice?
o
Were you ever or in the last __ years let go or asked to leave a job because you
couldn’t or wouldn’t work at other locations?
o
Are you aware of anything that would make working at other locations
difficult/impossible?
RETENTION
o
Why did you leave __________ (that job) after only _____ weeks/months?
o
Are you/will you be working any place else while you’re at XYZ Company such as for
your family, volunteer work, or other service obligations?
o
Are you/will you be taking classes/going to school while you’re at XYZ Company?
o
Have you ever or in the last __ years left a job because it was too hectic?
o
Have you ever or in the last __ years left a job because of a supervisor or
coworkers?
o
Have you ever or in the last __ years left a job because of the working conditions?
o
Have you ever or in the last __ years left a job because you didn’t get a raise or
promotion?
o
What is your long-term ambition or goal in life?
o
Career-wise, where would you like to be in five years? In ten years?
o
If selected, how much time should you be allowed to give notice to your present
employer?
FINANCIAL RESPONSIBILITY AND SALARY ISSUES
o
What are your income expectations for this job?
GENERAL QUESTIONS
o
Is there anything else you would like to express which we have not touched on?
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UNACCEPTABLE/DISCRIMINATORY QUESTIONS
An employer must remember that certain areas of inquiry must be avoided on an application,
during an interview, or at any time during the preemployment process. Discrimination in hiring
practices is prohibited in all states under several state and federal laws. A summary of the most
important of these employment laws follows.
•
The Civil Rights Act of 1964 under the provisions of Title VII prohibits discrimination in
employment on the basis of sex, race, color, religion, or national origin.
•
Discrimination on the basis of age is prohibited by the Age Discrimination in Employment
Act of 1967 (ADEA).
•
The Americans with Disabilities Act of 1990 (ADA) requires all public and private
employers to ensure equal employment opportunities to persons with physical or mental
disabilities qualified for the jobs they seek. As of July 25, 1994, the Act extends to all
employers of 15 or more employees.
•
The Rehabilitation Act of 1973 requires government contractors and subcontractors to
ensure equal employment opportunities to persons with physical or mental disabilities
who are otherwise qualified for the jobs they seek; employers are required to make
“reasonable accommodations” to their disabilities.
To select employees on the basis of merit and qualifications, a selecting authority would
legitimately explore areas of skill, experience, and past achievements that relate to actual job
performance. There are many areas of inquiry often used by selecting authorities that do not
relate to job performance. The provisions of Title VII of the U.S. Civil Rights Act of 1964 do not
expressly prohibit the use of any question in an interview. Title VII, however, does prohibit the
use of information generated by certain non-job related questions because such information can
be used to discriminate against different groups of people. It is very difficult for an employer
who has included non-job-related questions in an interview to prove the information generated
by such questions was not used in a final decision to hire.
The astute applicant (who may turn out to be an excellent employee) will want to know all about
your company to determine how well he/she fits into your company culture. Conversely, some
managers become a little suspicious of the applicant who asks about the details of the dental
insurance coverage, or how long it takes to be covered under the health insurance plan.
Unacceptable Questions
The following questions are considered unacceptable and must be avoided. Train yourself
and anyone who does interviewing for you to refrain from asking any questions of the type
below.
•
What nationality are you?
•
Is that a particular ethnic group surname?
•
What does your spouse do for a living?
•
Who will take care of your children after school?
•
Are you planning any additions to your family?
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•
Are you engaged to be married?
•
Do you go steady with anyone at this time?
•
Do you speak, read, or write a foreign language? (Ask only if job related, and then
only ask about language requirement for the job.)
•
How will you get to work every day?
•
What was your mother’s maiden name?
•
Was your name ever different from what it is now?
•
Do you own your own car?
•
Can you drive a car? (Ask only if needed as a job requirement, e.g., for sales work,
deliveries, etc.)
•
Have you ever received workers’ compensation benefits at a former job?
•
Why were you discharged from the military?
•
Are you a member of the reserves? Will you have to go to National Guard camp
every year? Do you get a disability pension?
•
When do you plan to retire?
•
Do you have a bank account? (Or checking account, IRA, stocks, bonds, own your
own home, own rental property, etc.)?
•
When will your baby be delivered?
•
Is your roommate male or female?
•
Have you ever been arrested? (You may ask if they have ever been convicted of a
felony or a major misdemeanor if it is related to the position in question.)
•
Would you send in a picture with your application?
•
How much do you weigh?
•
To what clubs/organizations do you belong?
Discriminatory Questions
The following questions are considered discriminatory and must be avoided.
1. When did you graduate from high school?
Asking applicants what years they attended school or what year they graduated could be
interpreted as a method of discriminating against them based on age.
2. How old are you?
The Age Discrimination in Employment Act prohibits discrimination on the basis of age
against individuals who are 40 years of age or more.
3. What is your height and weight?
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Imposing minimum height or weight requirements which are not related to the job to be
performed has the effect of excluding above-average percentages of women and members
of certain nationality groups. Unless height or weight is directly related to a job requirement,
these questions should not be asked.
4. Have you ever been arrested or convicted of a crime? (You can ask if the applicant
was ever convicted of a felony, but you cannot probe for non-felony convictions.)
An arrest is no indication whatsoever of guilt. Historically, persons of color have suffered
proportionately more arrests than others, and accordingly, the courts have held that without
proof of business necessity, an employer’s use of arrest records to disqualify job applicants
is unlawful discrimination. The Equal Employment Opportunity Commission has ruled that
even if an employer does not consider arrest information, simply requesting such
information tends to discourage minority applicants and is, therefore, illegal.
Federal courts have held that a conviction for a felony or misdemeanor may not by itself
lawfully constitute an absolute bar to employment, but that an employer may give fair
consideration to the relationship between a conviction and the applicant’s qualifications for a
particular job. If conviction inquiries are made, they should be accompanied by a statement
that a conviction record will not necessarily bar an applicant from employment. The
statement should go on to say that factors such as age and time of the offense, seriousness
and nature of the violation, and rehabilitation will be taken into account.
5. Have you had in the past or do you now have any medical problems or disabilities?
6. Have you suffered from a serious illness in the past five years?
7. Have you ever received workers’ compensation?
An employer may not use a physical or mental condition to disqualify an applicant merely
because the employer believes the applicant’s condition would pose a health or safety
threat. The employer must show that the condition poses a “significant risk of substantial
harm.” An assessment of the condition must be based on valid medical evidence.
Under the Americans with Disabilities Act of 1990 (ADA), it is unlawful to ask whether an
applicant is disabled or about the nature or severity of a disability. Under the ADA, a
disability is defined as a physical or mental impairment that substantially limits a major life
activity. This Act prohibits disability questions on application forms, during interviews, or in
background or reference checks. “Indirect” inquiries regarding an employee’s physical and
mental condition, such as whether there are any major life activities in which the applicant
cannot participate, are likewise prohibited.
Employers are likely to have even more trouble adhering to the ADA’s restrictions during the
actual interview process. Job interviews are fluid; it can be nearly impossible to “stick to the
script” and not ask what might appear to be an obvious question. Moreover, an applicant
might voluntarily bring up a disability, leaving the employer in the difficult spot of having to
quickly jump to a “safe” conversation topic. Fortunately, the ADA’s requirements are flexible
enough that an employer has options to deal with these situations.
First, as long as the employer’s question is not likely to elicit information regarding
disabilities, the fact that an applicant voluntarily responds with disability-related information
does not mean the employer has violated the ADA. As long as there are many possible
answers to a question, and only some of those answers would contain disability-related
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information, the question is not illegal. However, an employer must be careful to avoid
following up the applicant’s response with more questions regarding the disability. The
applicant may be asked questions about his/her ability to perform the essential functions of
the job. An applicant may also be asked to describe or demonstrate how, with or without
reasonable accommodations, the applicant will perform job-related functions.
8. I’m sorry you’re not qualified for the job. Your wheelchair won’t fit through the door to
the machine shop.
If the information provided by the applicant or the results of a physical examination given
after the job is offered and prior to the commencement of employment do indicate a
disabling condition, then the employer must consider what, if any, accommodations need to
be made so that the person can be employed. If an applicant volunteers that he or she
requires a reasonable accommodation to perform the essential function of a job, an
employer may then inquire what type of accommodation would be necessary. Further, for
an applicant with an obvious disability or one who volunteers information about a hidden
disability, an employer may ask if reasonable accommodations to perform essential job
functions are required and, if so, what those accommodations are. However, an employer
may not ask questions about an applicant’s underlying physical condition, nor ask an
applicant whom the employer does not reasonably believe will require an accommodation
whether they need one. These are considered indirect questions about disability status and
are forbidden. As a rule of thumb, questions about accommodations, if founded on a
reasonable belief that an accommodation is required, are permissible. Questions designed
to determine if an employee has a disability are illegal.
An employer may also ask if the applicant is able to perform “job related functions,” but the
question must be carefully posed. The employer first should describe the job function in
some detail, and then ask if the applicant can perform the task with or without a reasonable
accommodation. For example, if an employer is hiring a delivery person and the job
requirement includes the ability to drive a car, it is acceptable to ask whether the applicant
has a valid driver’s license. An employer may not, however, ask whether the applicant
suffers from a visual impairment. That question is too broad because it requests information
about a disability, not about an applicant’s ability to perform a particular job.
An employer also may ask an applicant with an obvious or volunteered disability to
demonstrate how he or she will perform the duties of the position, even if applicants without
disabilities are not required to give similar demonstrations. However, if the applicant
requests a reasonable accommodation to be able to perform the job, the employer must
provide that accommodation when the applicant is demonstrating his/her ability to perform
the job as well.
The ADA requires employers to make reasonable accommodations to the known physical or
mental limitation of a qualified handicapped applicant or employee, unless the employer can
demonstrate that the accommodation would impose an undue hardship on the operation of
the business.
Reasonable accommodation is any change or adjustment to a job or work environment that
permits a qualified applicant or employee with a disability to participate in the job application
process, to perform the essential functions of a job or to enjoy benefits and privileges of
employment equal to those enjoyed by employees without disabilities. For example,
reasonable accommodation may include:
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•
acquiring or modifying equipment or devices
•
job restructuring
•
part-time or modified work schedules
•
reassignment to a vacant position
•
adjusting or modifying examinations, training materials, or policies
•
providing readers and interpreters
•
making the workplace readily accessible to and usable by people with disabilities
9. Do you think your disability could create a risk of injury to a co-worker?
The ADA states that an employer may include a requirement that an individual shall not
pose a direct threat to the health or safety of others in the workplace. Some definition is
useful:
A “direct threat” is a significant risk of substantial harm to the health or safety of the
individual or others that cannot be eliminated or reduced by reasonable accommodation. An
employer cannot refuse to employ an applicant because his/her disability constitutes an
increased risk of injury. A risk is a direct threat only where there is a reasonable probability
of substantial harm.
In determining whether an individual constitutes a direct threat, the employer must consider
the duration of the risk, the nature and severity of the potential harm, the likelihood that the
potential harm will occur, and the imminence of the potential harm. The assessment must
be based upon individualized factual data, rather that on subjective perceptions, irrational
fears, patronizing attitudes, or stereotypes. Obviously, an employer is well-advised to
engage in a dialogue with the applicant who is suspected of posing a direct threat to
determine precisely what the applicant’s limitations are, rather than making assumptions
that may prove costly later. The employer must also bear in mind that the company bears a
responsibility to reduce the risk to an acceptable level, if possible, through the use of
reasonable accommodations.
10. Our doctor has discovered a medical condition during your preemployment physical.
I’m afraid we cannot hire you.
Under the Americans with Disabilities Act of 1990, it is unlawful for the employer to require
an applicant to take a medical examination before making a job offer. After a job offer is
made and prior to the commencement of employment duties, an applicant may be required
to take a medical examination if everyone who will be working in the job category must also
take the examination. The job offer may be made on condition of the results of the medical
examination. However, if an individual is not hired because a medical examination reveals
the existence of a disability, the employer must be able to show that the reasons for
exclusion are job-related and necessary for the conduct of business. Also, the employer
must be able to show there was no reasonable accommodation that would have made it
possible for the individual to perform the essential job functions. The decision to revoke a
job offer or to terminate an employee based on his/her medical condition entails a very
complex legal and factual analysis. Such a decision should only be made after consultation
with legal counsel and with the appropriate health care provider.
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Once an applicant is employed, the employer loses a great deal of latitude in conducting
examinations. The ADA allows physical examinations only where the examination is
required to ensure ability to conduct essential job-related functions. These can take the
form of periodic physicals to determine if an employee continues to be fit for duty,
examinations where a deterioration in performance of essential job functions is seen (such
as a police officer with an exemplary performance history who suddenly begins to perform
poorly), or if there is evidence of a safety problem resulting from an employee’s condition.
Otherwise, an employer cannot conduct routine physical examinations of employees (with
the exception of random drug testing, which is not considered an examination under the
ADA).
11. Do you use drugs or are you an alcoholic?
In dealing with alcohol or drug abuse, a distinction needs to be made between a past history
of and recovery from such abuse, and current abuse of alcohol or drugs. Under state and
federal law, recovery from alcoholism or drug addiction is considered a covered disability.
An applicant should not be rejected from employment consideration solely because of a
history of and recovery from drug or alcohol abuse.
Under the ADA, an individual who is a current alcohol or drug abuser is specifically excluded
from coverage if the current drug or alcohol abuse prevents an employee from performing
the duties of the job or if the current abuse would constitute a direct threat to the property or
safety of others.
The Drug-Free Workplace Act of 1988 requires employers having federal contracts of
$25,000 or more, or who receive federal grants, to establish a drug-use policy, maintain
drug-free awareness programs, and requires employees to report to the employer any
criminal drug law convictions for violations that occur in the workplace.
12. Do you have AIDS or HIV?
AIDS (Acquired Immune Deficiency Syndrome), ARC (AIDS Related Complex), and testing
positive for HIV (Human Immunodeficiency Virus) have become matters of concern for
employers because of fear about the communicability of AIDS. Present research shows
there is no transmittal of the disease through casual contact, and that where there is slight
risk of infection through contact with body fluids, precautions can be taken to reduce that
risk.
The Rehabilitation Act of 1973, as amended, Section 503, prohibits federal government
contractors and subcontractors from discrimination against qualified handicapped applicants
and employees. Several court rulings have determined that AIDS is considered to be a
disability covered under the federal law. Persons with AIDS and HIV disease are protected
from discrimination under the ADA.
13. I see that you were in the military. What type of discharge did you receive?
A policy which arbitrarily eliminates candidates who have less than honorable military
discharges may violate Title VII of the U.S. Civil Rights Act of 1964. Evidence demonstrates
that proportionately more black males than white males were given dishonorable discharges
from the military service. Thus, requiring an honorable discharge, or preferring applicants
with honorable discharges, could have an unfair impact on non-white applicants.
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Employers granting preferences for military veterans without statutory authorization may
violate state and federal civil rights laws because the preference may have an adverse
impact on women.
14. As an outside salesman, the company does not allow green-colored hair and nose
rings.
The employer has a legitimate business interest in having employees represent the
company with the employer’s desired image and appearance to the public. The courts have
ruled that reasonable dress and appearance codes are a proper exercise of management
authority, as long as the standards are directly related to the requirements of the position
and do not have an adverse impact on any protected class, such as sex or race. Employers
should be aware that an appearance requirement based on offensive or demeaning sex
stereotypes may be a violation of Title VII of the U.S. Civil Rights Act of 1964.
15. Do you own your home and car?
Persons of color and women tend to be adversely affected when financial status (including
home and car ownership) is a hiring consideration. This is because, on average, persons of
color and women have lower incomes than white males. Therefore, except in cases of
business necessity, it is probably unlawful to use these factors when making hiring
decisions. A question on car ownership may be considered a job-related question if the
person is required to provide his/her own car for the performance of job duties. The U.S.
Department of Labor has also recognized the potential for discrimination in the consideration
of credit records.
16. Do you have any children? If so, what are their ages?
The purpose of these questions is to explore what the employer believes to be a common
source of absenteeism and tardiness. There are a number of common causes of
absenteeism and tardiness which affect any employee and which would be worthy of
exploration if this is a matter of substantial concern to the employer. Title VII of the U.S.
Civil Rights Act of 1964 prohibits an employer from having one hiring policy for women and
another for men–each having pre-school children.
17. What was your maiden name?
18. Are you widowed, divorced, or separated?
19. What is your spouse’s name?
20. Where does your spouse work?
21. Where were your parents born?
Such inquiries should be eliminated because they are not related to job performance.
Asking an applicant to provide any prior married name or maiden name, in effect, asks
whether an individual has been divorced. By its nature, however, this question is only asked
of women because only a woman changes her name upon marrying. Thus, the question is
discriminatory unless the employer must have the information as a means of identification
for preemployment investigation. Information needed for tax, insurance, or social security
purposes may be obtained after the offer of employment to the applicant.
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The EEOC has adopted “Guidelines on Discrimination Because of Natural Origin” which
contains the following statement: “Because discrimination on the basis of citizenship has
the effect of discriminating on the basis of national origin, a lawfully immigrated alien who is
domiciled or residing in this country may not be discriminated against on the basis of his
citizenship,” except pursuant to national security requirements required by a federal statute
or executive order.
To the extent that the question asks for marital status, the comments on marital status
questions apply. In addition, some employers have been reluctant to hire a woman if that
would make her the second breadwinner in the family; whereas, there is seldom any
objection to hiring a man if that would make him the second breadwinner in the family. A
spouse’s name may also be used as an indication of religion or national origin. If next of kin
information is needed for emergency use, this is more appropriately gathered after the
individual is hired.
22. Do you speak English?
Both the EEOC and the courts have interpreted Title VII of the U.S. Civil Rights Act of 1964
as barring language policies that require speaking only English on the job, unless the policy
can be justified as a bona fide occupational qualification (BFOQ) or by business necessity,
such as safety, or communication with customers, co-workers or supervisors. A rule
prohibiting speaking of another language on the job may not be valid if the employer fails to
establish a business necessity. A foreign accent that does not interfere with the worker’s
ability to perform the job duties is not a legitimate justification for an adverse employment
decision.
23. Did you have any wage garnishments in your last job?
It is a violation of Title VII of the Civil Rights Act of 1964 to discharge an employee or refuse
to hire an applicant based on wage garnishment record. There is evidence to support that
people of color suffer wage garnishments substantially more often than do whites, and that
wage garnishments do not affect a worker’s ability to perform work effectively.
24. What is the lowest salary you will accept?
Women generally have been relegated to poorer paying jobs than men, and have been paid
less than men for the same work. As a result of this discrimination, a woman might be
willing to work for less pay than a man would find acceptable. It is unlawful, however, to pay
a woman less than a man would be paid because of community wage patterns which are
based on discrimination.
25. Can you work Saturdays and Sundays?
This question may serve to discourage applications from persons of certain religions which
prohibit their adherents from working on Saturday or Sunday. On the other hand, it may be
necessary to know whether an applicant can work on these days. Section 701 (j) of Title VII
of the Civil Rights Act of 1964, as amended in 1972, prohibits discrimination on the basis of
religion and defines religion to include “all aspects of religious observance and practice, as
well as belief, unless an employer demonstrates that he is unable to reasonably
accommodate an employee’s or prospective employee’s religious observance or practice
without undue hardship on the conduct of the employer’s business.” If this kind of question
is asked, it would be desirable to indicate that a reasonable effort will be made to
accommodate the religious needs of employees.
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26. I’m sorry, but we are only looking for female applicants.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of
sex. Exceptions are when sex is a bona fide occupational qualification (BFOQ) for positions
requiring the physical characteristics possessed only by one sex; this is applied only to such
occupations as artists’ models, rest room attendants, wet nurses, or sperm donors. Other
than these examples, all jobs and opportunities must be made equally available to both
sexes. For this reason, it would be desirable to omit any question asking the applicant’s sex
from an application form which is intended for general use.
Many jobs, however, have acquired the classification of “men’s jobs” or “women’s jobs”
based on popular generalizations regarding the strength, size, or apparent preferences of
men and women, without taking into account individual characteristics. Title VII of the Civil
Rights Act of 1964 makes no provision for BFOQ on the basis of race or color. A BFOQ on
the basis of religion may apply where an educational institution is owned, supported, and
controlled by a particular religious group, or if its curriculum is directed toward the promotion
of a particular religion.
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APPLICANT SELECTION PROCESS
Once all of the relevant information has been obtained, the employer must
synthesize the information and select the most qualified applicant. The employee
selection process is one of the most complex, yet critical functions, impacting
an organization’s success. The end product of the selection process is a
recommendation to hire, which depends upon a full understanding of an
applicant’s qualifications, capabilities, strengths, limitations, and potential
for success. For ethical, financial, business and legal reasons, this
recommendation must be justifiable and based upon a comparison of the
job requirements to the applicant’s qualifications. A logical, structured
interview has proven to be an extremely effective means to achieve the
objectives of interviewing and selecting.
Three basic questions must be answered to make an accurate selection decision:
1. Can the applicant do the job or be trained to do it in an acceptable period of time?
The “can do” factors include abilities and basic competency requirements such as
education, job experience, skills, and energy level.
2. Will the applicant do the job and continue to do it at the level required?
The “will do” factors include motivation, incentive, drive, aspirations, goals, and
interests.
3. How will the person fit in with the manager, peers, and subordinates?
The “how fit” factors include communication, interpersonal skills, adaptability,
flexibility, and personal style.
Selecting an employee that is a good fit for the employer has a number of advantages. First, by
selecting an employee that is a good fit to begin with, the employer has to deal with reduced
turnover in the work force. Employees that are a good fit are also easier to train, have higher
levels of satisfaction in their careers, and have higher levels of morale than employees who are
a poor fit for a position.
REFERENCE/BACKGROUND CHECKS
Before making a conditional job offer to an applicant, an employer may not request any
information about the job applicant from a previous employer, family member, or source that the
employer may not directly request of the job applicant. The employer may request information
related to the job, but should not inquire about the applicant’s age, sex, national origin, race,
color, creed, religion, or physical or mental disability.
To protect themselves, employers in the 1980s generally adopted a safe policy of limiting
information provided in references to specific information (i.e., length of service, job title,
responsibilities, and salary). Since an applicant’s prior work history is often the best indicator of
his/her potential, this information is inadequate. If employers are to survive the legal challenges
of hiring, more information is critical. There is absolutely no reason an employer cannot obtain
adequate information.
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First, the employer can obviously ask the applicant more pointed questions: Have you ever
been involuntarily terminated? Have you ever been asked to resign? How often have you been
late for work? However, these pointed questions or others are not a substitute for obtaining the
applicant’s track record. The hiring employer can request that the applicant authorize (1) the
receipt of the employee’s personnel file from his former employer, or (2) specific information
from a former employer (e.g., evaluation ratings, number of promotions, relationship with other
employees and managers, and attendance record). To provide assurance for the former
employer, the interviewing employer should obtain a separate waiver of claims against the
former employer.
This type of disclaimer should provide the former employer sufficient comfort to provide the
information. Moreover, as discussed below, some states’ laws provide protection to employers
who provide employment reference information in good faith. And, probably more importantly, a
refusal to sign the waiver is likely a good indicator that the applicant’s “track record” is not as
unblemished as he/she has claimed.
If an employer uses an outside firm to conduct background checks, the employer should assure
that this firm complies with the ADA. Such a firm is an agent of the employer. The employer is
responsible for actions of its agents and may not do anything through a contractual relationship
that the employer may not do directly.
The following table lists acceptable and nonacceptable questions that may be asked of the
applicants previous employer.
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GUIDE TO PRE-EMPLOYMENT INQUIRES
TOPIC
Family Status
Race or Color
ACCEPTABLE
INADVISABLE
Whether applicant has responsibilities or
commitments which will prevent meeting work
schedules, if asked of all applicants regardless
of sex.
Marital status, number and age of children,
None
Applicant’s race or color of applicant’s skin.
None
What is your religion?
spouse’s job.
Religion
What church do you attend?
References
Sex
Workers’ Compensation
Organizations
Photographs
Pregnancy
Creed or Religion
Credit Records
Language
Name of character references.
Name of applicant’s pastor or religious leader.
None, except where sex is a bona fide
Any inquiry except where BFOQ.
occupational qualification (BFOQ).
None
Applicant’s
Past Workers’ Compensation claims.
membership
in
professional
All clubs, social fraternities, societies, lodges,
organizations, if job related.
or organizations to which applicant belongs.
None, except after hiring.
Photograph with application or after interview,
but before hiring.
None
Any inquiry into pregnancy, medical history of
pregnancy, or family plans.
None, except where religion is a bona fide
Applicant’s religious affiliation, church, parish,
occupational qualification.
or religious holidays observed.
None, unless job related.
Inquiries
about
charge
accounts,
bank
accounts, home ownership, etc.
Language applicant speaks or writes fluently, if
Language
job related.
members at home, or how applicant acquired
used
by
applicant
or
family
the ability to read, write, or speak a foreign
language.
Name
Whether applicant’s educational records or past
The original name of an applicant whose
work experience are under a different name.
name has been legally changed or the
national origin of an applicant’s name.
Can you show proof of your eligibility to work in
Are you a U.S. citizen?
the U.S.?
Citizenship or Nationality
Are you fluent in any languages other than
English? (Only as it relates to the job being
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sought.)
TOPIC
Available
ACCEPTABLE
for
Work
on
Weekends, Evenings
INADVISABLE
If asked of all applicants and it is a business
Any inquiry about religious observance.
necessity for the person to work weekends
and/or evenings.
Citizenship,
Birthplace,
and National Origin
The only legitimate concern here is whether the
Birthplace, national origin, ancestry, or lineage
applicant is eligible to work in the United States,
of applicant, applicant’s parents, or applicant’s
under terms of the Immigration Reform and
spouse.
Control Act of 1986.
Disability
Height and Weight
Marital Status
Military Service
Arrest Records
Conviction Records
Whether
applicant
can
perform
essential
to list disability.
None, unless job related.
Any inquiry unrelated to job requirements.
None
Whether applicant is married, single, divorced,
separated, engaged, or widowed.
Military experience or training.
Type or condition of discharge.
None
Number and kinds of arrest.
Inquiry into convictions, if job related.
Any inquiry about conviction unrelated to job
requirements.
Are you able to perform the essential functions
Disability
To ask applicant if he/she is disabled and/or
functions of the job.
of
this
job
with
or
without
Are you disabled?
reasonable
What is the nature or severity of your
accommodations?
disability?
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SAMPLE CONSUMER REPORT DISCLOSURE AND AUTHORIZATION FORM
DISCLOSURE
In connection with your employment or application for employment or authorization to drive a
company car with <COMPANY NAME>, we may seek to obtain a consumer report, including,
but not limited to, your motor vehicle and criminal records. The consumer report may be an
“investigative consumer report” that includes information as to your character, general
reputation, personal characteristics, and mode of living. You have a right to request disclosure
of the nature and scope of the report, which involves personal interviews with sources such as
your neighbors, friends, or associates.
In the event you become an employee of <COMPANY NAME>, we may obtain any of the above
mentioned materials to verify your continued suitability for your position, or to assist us with a
decision regarding a potential promotion.
<COMPANY NAME>
__________________________________________
<COMPANY NAME> Representative
AUTHORIZATION
I authorize <COMPANY NAME> to obtain a consumer report in connection with my application
for employment, continued employment or authorization to drive a company car.
__________________________________________
<COMPANY NAME> Representative
__________________________________________
Date
Note: We will provide you with a copy of your consumer report prior to taking any adverse
action against you if that adverse action may be taken in whole or in part due to what is
contained in your consumer report.
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SAMPLE RELEASE OF INFORMATION FORM
49 CFR PART 40 DRUG AND ALCOHOL TESTING
(To be used ONLY for new employees seeking to begin performing
Department of Transportation safety-sensitive duties)
Section 1.
To be completed by the new employer, signed by the employee, and
transmitted to the previous employer:
Employee Printed or Typed Name __________________________________________
Employee Social Security or ID Number _____________________________________
I hereby authorize release of information from my Department of Transportation-regulated drug
and alcohol testing records by my previous employer, listed in section 1-B, to the employer list
in 1-A.
This release is in accordance with DOT Regulation 49 CFR Part 40, Section 40.25. I
understand that information to be released in Section 2-A by my previous employer is limited to
the following
DOT-regulated testing items:
1. Alcohol tests with a result of 0.04 or higher;
2. Verified positive drug tests;
3. Refusals to be tested;
4. Other violations of DOT agency drug and alcohol testing regulations;
5. Information obtained from previous employers of a drug and alcohol rule violation;
6. Documentation, if any, of completion of the return-to-duty process following a rule
violation.
Employee Signature ________________________________ Date ___________________
1-A
New Employer’s Name _________________________________________________________
Address _____________________________________________________________________
Phone Number _______________________ Fax Number ___________________________
Designated Employer Representative ______________________________________________
1-B
Previous Employer’s Name _____________________________________________________
Address _____________________________________________________________________
Phone Number _______________________ Fax Number ___________________________
Designated Employer Representative ____________________________________________
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Section 2.
To be completed by the new employer, signed by the employee, and
transmitted to the previous employer:
2-A
In the two years prior to the date of the employee’s signature (in Section 1), for DOT-regulated
testing:
1. Did the employee have alcohol tests with a result of 0.04 or higher?
YES ___ NO ___
2. Did the employee have verified positive drug tests?
YES ___ NO ___
3. Did the employee refuse to be tested?
YES ___ NO ___
4. Did the employee have other violations of DOT agency drug
and alcohol testing regulations?
YES ___ NO ___
5. Did a previous employer report a drug and alcohol rule
violation to you?
YES ___ NO ___
6. If you answered “yes” to any of the above questions, did the
Employee complete the return-to-duty process?
YES ___ NO ___
Note: If you answered “yes” to item 5, you must provide the previous employer’s report. If you
answered “yes” to item 6, you must also transmit the appropriate return-to-duty documentation
(e.g., SAP report(s), follow-up testing record.
2-B
Name of person providing information in Section 2-A ________________________________
Title _______________________________________
Phone Number ______________________________
Date ______________________________________
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SAMPLE EMPLOYMENT REFERENCE INQUIRY
(All replies strictly confidential)
Name of Applicant _____________________________________________________________
Name of Reference ________________________ Title ______________________________
Employer ____________________________________________________________________
Employment Dates – from __________________________ to _________________________
Please describe major duties and responsibilities for <NAME> in this position.
What would you say are three greatest strengths for <NAME>?
1. ______________________________________________________________________
2. ______________________________________________________________________
3. ______________________________________________________________________
What are areas you would say <NAME> was trying to improve upon?
How does <NAME> compare to other employees in similar positions?
Why did <NAME> leave this position?
Please rate the following:
Excellent
Satisfactory
Unsatisfactory
1. Quality/Quantity of Work
(
)
(
)
(
)
2. Dependability/Punctuality
(
)
(
)
(
)
3. Attitude/Cooperation
(
)
(
)
(
)
4. Professional Conduct
(
)
(
)
(
)
5. Ability to Get Along with Coworkers
(
)
(
)
(
)
6. Ability to Get Along with Management
(
)
(
)
(
)
7. Self-Starter/Taking Initiative
(
)
(
)
(
)
8. Time Management
(
)
(
)
(
)
9. Leadership Skills
(
)
(
)
(
)
10. Communication-Written/Oral
(
)
(
)
(
)
Eligible for Rehire?
(
) Yes
(
) No – Why? _______________________________
Would you recommend this individual for our position?
(
) Yes
(
) No
Comments ___________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
__________________________________ _________________________ _______________
Signature
Title
Page 45
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Employment Practices
SAMPLE CONFIRMATION JOB OFFER LETTER
DATE
NAME
ADDRESS
CITY, STATE, ZIP
Dear NAME:
Welcome to <COMPANY NAME>! We are delighted that you have accepted our position of
<JOB TITLE> with <COMPANY NAME>. We feel you have excellent qualifications that will be
challenged and recognized here.
To confirm our offer, your starting monthly salary will be <SALARY>. Please report to the Home
Office lobby on <DATE/YEAR>, at 8:00 a.m., and ask the receptionist to contact the Human
Resources Department for orientation. During the orientation, I will explain our benefit package
to you in detail.
On your first day you will be able to park at <PARKING LOCATION>. A map is enclosed
describing how to get to our parking lots.
Please remember to bring picture identification and your social security card.
Once again, welcome aboard! I look forward to seeing you on <DATE/YEAR>.
Sincerely,
COMPANY REPRESENTATIVE
TITLE
Enclosure
Please note: This is not an employment contract, but a letter confirming our offer of
employment.
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POSITION DESCRIPTION CHECKLIST
This checklist determines whether the business needs to develop written position descriptions.
Each “Yes” answer demonstrates a reason to develop the position description.
Conditions Indicating a Need for Written Position Descriptions
1. Does the business have more than 15 employees?
Yes
No
2. Does the business have multiple locations?
Yes
No
3. Does the business have problems finding satisfactory replacements
for employees?
Yes
No
4. Does the business have difficulty articulating its expectations to
employees?
Yes
No
5. Does the business have unfulfilled or duplicated tasks?
Yes
No
6. Does the business lack a documented rationale for treating positions as
“exempt” from the wage and hour rules on overtime or minimum wage?
Yes
No
7. Does the business lack a documented rationale for unequal rates of pay between
protected class (women, ethnic, and racial minorities, older workers, etc.) and
unprotected class workers?
Yes
No
8. Do the business position applications lack questions specific to the position
being filled?
Yes
No
9. Do the business hiring interview forms lack questions specific to the position
duties to be performed?
Yes
No
10. Do the business employee evaluations lack identification and review of the
employee’s important specific position duties?
Yes
No
11. Does the business lack evidence to support termination for poor
performance?
Yes
No
12. Do employees claim not to know the position duties and level of performance
expected?
Yes
No
13. Does the business commonly experience incidents when new employees
fail to perform important tasks because they weren’t adequately informed
or trained?
Yes
No
14. Does the business lack identification of safety hazards in the employee’s
position duties?
Yes
No
15. Does the business have problems determining or controlling labor costs of
particular activities?
Yes
No
16. Does the business lack documentation to show that hiring, promotion, and
disciplinary decisions are based on position requirements, rather that illegal
discriminatory practices?
Yes
No
17. Does the business have inconsistencies in its hiring, evaluation, and
compensation criteria for a specific position?
No
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Employment Practices
18. Does the business lack documentation of procedures necessary to perform
position duties critical to the organization?
Yes
No
19. Does the business have conflicts over lines and levels of authority and
responsibility?
No
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POSITION DESCRIPTIONS
The position description outlines the duties of each task and other responsibilities of the
position. The description covers the different task requirements, such as mental or physical
activities, working conditions, and position hazards. The approximate amount of time the
employee should spend on each activity is specified. Position descriptions focus on the what,
where, and how of the position.
Every employee of the company should have a position description prepared to reflect the
employee’s duties and responsibilities. It should not go without saying, then, that every position
within the company should also be afforded a position description. The physical demands of the
position should also be identified so that only applicants capable of performing the physical
demands should be considered for employment. For that reason, if position descriptions are not
currently being used in the company, they may prove helpful if established before the hiring
process begins. It is not only fair for the employee to know what he/she is expected to do
during a workday, but it also assists the employer in evaluating an employee’s performance,
and when necessary, to take disciplinary action in situations when an employee is not
performing to the company’s expectations and/or needs. A position description can be divided
into two broad categories:
1. Standard descriptions which cover several positions and are written in general terms that
may cover all duties of one position.
2. Specific position descriptions which are detailed and comprehensive and cover all duties
of one position.
In summary, the position description can be used to:
•
Clarify responsibilities.
•
Show lines of progression.
•
Save hiring time and cost.
•
Define relationships between people and among departments.
•
Help management assign key responsibility.
•
Develop training programs geared to on-the-position situations.
•
Assure that performance appraisals are based on stated position requirements.
•
Defend against discrimination claims.
•
Counsel, warn, terminate, and lay off employees, and improve compliance with the
Americans with Disabilities Act of 1990 (ADA), the Family Medical and Leave Act of
1993, and other state and federal regulations.
A position consists of essential duties (tasks completed that justify the position’s existence)
performed under certain working conditions. Most positions can be described by five to ten task
statements. Statement of tasks should include an action and an expected result. Essential
tasks should be position-related and based on business necessity. An employer’s judgment is
the key factor in determining whether a position task is essential or not.
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These guidelines should be used to prepare clear and orderly written position descriptions:
•
Be logical.
•
Be specific.
•
Be consistent.
•
Use proper detail.
•
Use the active voice.
•
Avoid vague terms.
•
Describe rather than prescribe.
•
Check accuracy.
•
Assign position titles.
POSITION DESCRIPTION INSTRUCTIONS AND EXPLANATIONS
Specifically, a position description should have the following elements:
Position Title
• Specific title of job/position.
Department/Work Location
• Detailed description of where the employee will work.
Reports To
• Title of Supervisor (do not identify this person by name).
Supervision
• If position is supervisory, number of employees supervised and who supervised (do
not identify these persons by name).
Job Summary/Purpose
• A brief description of the job and why the position exists.
Essential Functions
• A list and description of the duties and responsibilities of the job. Reasonable
accommodations may be allowed upon request. Written explanations for these
accommodations should be included.
• Percentage of time spent for each function (total should equal 100%).
Non-Essential Functions
• Tasks that may have been part of the position in the past and are likely be assigned
to the next position holder, unless the position holder proves unable to perform them
after receiving any training and/or accommodations judged appropriate.
• The last item listed should always be “other duties as assigned.”
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Minimum Qualifications
Knowledge, Skills, and Abilities
• Any special skills or abilities needed above education or experience (i.e., data entry
speed of 50-60 wpm, ability to work 38.75 hours per week).
Education/Experience
• Minimum education and/or experience required to be qualified for this job/position
(i.e., one to two years’ experience with Microsoft Word).
Essential Mental and Physical Activities, and Requirements
• List of physical and/or mental requirements for the job (i.e., lifting up to 50 pounds
from floor level to chest high occasionally).
Visual Acuity, Hearing, Speaking
• List of sensory requirements: distance and close-up vision, color-blindness, hearing
requirements, and speech in the English language required for directions.
Other Minimum Qualifications
• The last item listed should be, “This position description does not list all the duties of
the position. You may be asked by supervisors or managers to perform other duties.
You will be evaluated, in part, based upon your performance of the tasks listed in this
position description. The employer has the right to revise this position description at
any time. The position description is not a contract for employment, and either you
or the employer may terminate employment at any time, for any reason.”
Environment and Scheduling
• Temperature, dust, dirt, wind requirements of work area and length of time in these
environments.
Materials and Equipment Used
• List of equipment the employee will use in performing the essential functions of the
job (i.e., computer terminals, plotters, radio, photocopier, etc.)
Personal Protective Equipment Used
• List of personal protective equipment the employee will be required to use to protect
themselves from identified hazards while performing the essential functions of the job
(i.e., safety glasses/goggles, rubber gloves, hard hats, steel-toed metatarsal
supported shoes, etc.).
Approvals
• Signature of authorized management representative and date signed.
The last item listed should be, “This position description does not list all the duties of the
position. You may be asked by supervisors or managers to perform other duties. You will
be evaluated, in part, based upon your performance of the tasks listed in this position
description. The employer has the right to revise this position description at any time. The
position description is not a contract for employment, and either you or the employer may
terminate employment at any time, for any reason.”
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SAMPLE POSITION DESCRIPTION
Job Title: Custodian
Qualifications:
Education
† High school diploma or equivalent preferred.
† Ability to read, interpret, and understand the English language to understand product
labels and Material Safety Data Sheets (MSDS) for all cleaning products, task
procedures, and informational and warning signage. This will be verified with a
reading test.
† Communicate both written and verbally in the English language.
† Have math skills sufficient to correctly figure dilution ratios when mixing chemicals in
accordance with manufacturer’s specifications. This will be verified by a math test.
Licenses/Certification
† Valid < STATE> chauffeur’s license with no moving violations on motor vehicle
record (MVR).
† Valid <STATE> Pesticide Applicator’s license.
Experience
† Experience in school custodial department or related experience preferred but not
required.
Physical Demands
† Must be able to work with interruptions during a work shift.
† May be required to work occasionally* at heights above 10 feet from structures,
platforms, and ladders.
† Must be capable of standing constantly*.
† It may be necessary to occasionally* lift up to 75 pounds to waist level, occasionally*
lift up to 45 pounds to shoulder level, and occasionally* lift up to 25 pounds above
head level.
† Must be capable of occasionally* pushing 125 pounds with hands placed 48 inches
above floor.
† Must be capable of occasionally* pulling 100 pounds with hands placed 36 inches
above the floor.
† Must be capable of occasionally* mopping for up to 2 minutes at a time.
† Must be capable of occasionally* squatting for up to 2 minutes
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Employment Practices
† Must be capable of occasionally* climbing 4 steps of a ladder.
† Must be capable of occasionally* carrying 45 pounds up 10 steps.
† Must be capable of occasionally* carrying 35 pounds for a distance of 100 feet.
† Must occasionally* use electrically operated equipment such as buffers, scrubbers,
and vacuums.
† Must occasionally* bend, stoop, squat, kneel, reach, and twist.
† May occasionally use hand tools requiring a grip force of up to 25 pounds.
* Denotes standard values established by DOT and OSHA
Every applicant will be required to take a Functional Screen Test at the school district
occupational health provider to determine his/her ability to perform the physical demands
listed above.
Reports To:
The Director of Buildings and Grounds or designee with input required
from building principal or department supervisor
Supervises:
None
Job Goal:
† To provide exemplary performance in all aspects of custodial service and to ensure
that all work preformed is completed to standard.
† To demonstrate a positive attitude, loyalty, cooperation, teamwork, attendance, and
safety.
Hours of Work:
† 8 hours per day
Clothing:
† Safety glasses, rubber-toed shoes/boots, street clothes, Typically, the custodial staff
wears street clothes with appropriate gloves and/or protective equipment required by
the task.
Equipment/Tools:
† Brooms, mops, rags, buckets, garbage liners and cans, cleaning chemicals, buffers,
auto scrubbers, commercial mowers, push mowers, trimmers, shovels, carts, dollies,
salt spreaders, snow blowers, hoses, hand broom, dust pan, ladders, and Genie lift.
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Performance Responsibilities:
Below are suggestions of Significant Performance Responsibilities only. This list is not
intended to be all-inclusive. Other duties may be assigned which fulfill the needs of
students.
† Performing all custodial tasks as they relate to the school district.
† Working with minimum supervision in accordance with published and verbal
standards, guidelines, policies, and procedures.
† Stripping, sealing, waxing, and high speeding hard floors.
† Carpet cleaning to include vacuuming, extracting, bonnet padding, and spotting.
† Setting up and cleaning up the cafeteria.
† Policing corridors and grounds.
† Cleaning and disinfecting rest rooms, locker rooms, classrooms, gyms, and team
rooms.
† Setting up gyms for special events.
Terms of Employment:
† In accordance with terms outlined in the master contract.
Evaluation:
† Evaluation for new or transferred employees will be completed after 2 months and
again by the following March 1.
† After the first full year, employees will be evaluated annually or before June 30 each
year.
† Evaluation is the responsibility of the Director of the Department of Buildings and
Grounds or designee.
Substance Abuse Testing:
† Applicants may be required to submit a urine sample to the school district’s
occupational health provider for substance abuse testing following a work-related
injury or incident.
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PRE- AND POST-JOB OFFER TESTING
Skill-Based Testing
The purpose of any preemployment testing procedure is to help the employer accurately
select employees on the basis of their ability to do the job. For discrimination purposes, the
term “test” means any paper and pencil or other performance measure, including measures
of general intelligence, aptitude, dexterity, ability, coordination, knowledge, any selection
criteria, proficiency, and personality. Other examples include performance testing, training
programs, educational or work experience requirements, and probationary periods.
Testing of job applicants and employees is permissible as long as the use of the test is a
reasonable measure of job performance and focuses on the individual’s qualifications for a
job. State and federal laws prohibit the use of tests that are “fair in form, but discriminatory
in operation,” if they fall more harshly on a statutorily protected group and cannot be justified
by business necessity or job relatedness. In summary, the test must be job-related and
professionally validated.
Under the ADA, employers must also make it possible for a person with a disability to
participate in the application process. For example, if an applicant is blind, the employer
must provide assistance with the written application and any required written test. The
personnel office and testing site should be accessible to persons with disabilities or alternate
arrangements must be available.
Drug testing can be easily defeated by temporary abstinence, sample substitution, or by
chemical alteration or dilution.
The Equal Employment Opportunity Commission has established Uniform Guidelines on
Employee Selection Procedures for determining whether testing and other selection
procedures are discriminatory. But, in general, an employer should not use any testing or
selection procedure that has an adverse impact on members of a racial, ethnic, age, gender
group, or people with disabilities.
At a minimum, an employer should review job requirements to be sure they are job-related
and appropriate for the job classification. A uniform, scored interview process will also
assist the employer in keeping selection decisions as objective as possible. Keeping
records of applicant flow and selection rates for each job category will enable the employer
to determine if any adverse impact is occurring.
For technical assistance in test validation, an employer can contact state or federal civil
rights agencies or a professional testing consultant.
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Functional Screen Tests
Functional Screens are part of an employer’s tools in the prevention of work-related injuries.
A Functional Screen is usually performed post offer and is set up to simulate the essential
functions of a job and serves two purposes:
1. To determine if an applicant is capable of safely performing the essential functions of
the job.
2. To educate an individual to perform the essential functions of the new job using safe
body mechanics. This education is done by a licensed physical therapist.
Step #1
The process begins with the employer and a consultant of EMC Insurance Companies Risk
Improvement Department identifying the need for a Functional Screen. This depends on:
•
Incidents of injury.
•
Potential for injury.
•
Needs to control costs in a certain area.
•
High turnover in a potentially heavy position or a position which requires various
physical capabilities, such as carrying, lifting, pushing, etc.
Step #2
A Job Analysis Questionnaire is completed by a sample group of employees, that may
consist of the employer, the supervisor, and/or employees who perform the job.
Photographs and/or video clips can also be provided to assist in describing the task. This
information is vital in identifying the physical capabilities of the job.
Step #3
Verification and measurement of specific physical demands at the work site is conducted
during the third step by EMC Risk Improvement Consultants, and on occasion, a physical
therapist. The consultant works with the employer, supervisor, and employees to analyze
the physical functional demands and essential functions of the position. Weights lifted,
heights lifted to and from, distance carried, and amount of grasp required are all examples
of physical functions that may be measured at the time of the consultant’s visit.
Step #4
A functional job analysis is then completed from the information compiled from the
questionnaires and during the on-site visit.
Step #5
The employer then reviews the functional job analysis and validates that it is an accurate
reflection of the physical requirements of the job.
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Employment Practices
Step #6
The functional job analysis will be converted to a functional screen. For example, if an
individual needs to be able to lift 50 pounds from the floor to the waist and this is the
maximum amount, this would be tested in a functional screen.
Step #7
Although not critical to the accuracy of the process, the employer may desire to provide two
or three employees who presently perform the job to submit to the functional screen testing.
Potential Benefits
•
A reduction in injuries due to the screening of appropriate applicants.
•
A reduction in injuries due to improved education.
•
Improved employee morale.
•
Improved employee-employer relations.
•
Cost savings and reduction of injury dollars.
•
Decreased rehabilitation costs if an injury does occur, as the Functional Screen can
be used to facilitate a job match following injury.
•
Improved restriction writing if an injury does occur, as the physician will have the
Functional Screen as a reference tool.
Drug Testing
Private employers may require applicants to take drug tests to screen for illegal drug use
before a conditional offer of employment is made. In contrast, public employers are
prohibited from conducting drug testing upon employees except under very limited
circumstances. Even for private employers, however, care must be taken when testing for
illegal drugs.
Though current illegal drug users and alcoholics who cannot safely perform their jobs are
not protected by the ADA, alcoholics, rehabilitated drug users, and those who are
erroneously regarded as engaging in illegal drugs are protected. Moreover, testing for
illegal drugs can be interpreted in a fashion which can give rise to claims under the
Americans with Disabilities Act.
Because the hiring process is both costly and time-consuming, employers may wish to
reduce the possibility that an otherwise suitable applicant will be eliminated by a later drug
test. This can often be accomplished simply by informing applicants from the outset of the
application process that all employment is contingent upon passing a drug test.
Employers continue to report that merely advising applicants of the need to take such a test
reduces the number of applicants that have to be tested. Informing applicants of drug
testing early, therefore, results in applicants who know they cannot pass such a test
removing themselves from the process early, rather than after an offer of employment has
already been made.
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In the case of employees who drive a commercial vehicle for the company, Department of
Transportation (DOT) rules on drug testing apply. Note: Some states have specific
requirements pertaining to the use of drug screens for employment candidates and
employees.
Types of Drug and Alcohol Tests Used
Employers testing employees for drugs must educate themselves about drug testing
technology, its limitations, and costs. There is a wide range of tests that vary in price.
Such tests include body fluid tests, i.e., blood, saliva, and urine tests and noninvasive
brain scans, as well as the analysis of strands of hair.
Credibility of Tests/Chain of Custody
A major source of dispute is the accuracy of drug tests. The problem usually presented
is whether the specimen belonged to the accused and whether it was tainted by other
specimens. To avoid this challenge, often characterized as a “chain of custody”
challenge, whoever is collecting the sample (employer, hospital, or industrial clinic)
should make sure all specimens are labeled with the employee’s or applicant’s name,
social security number, and a serial number; seal the specimen in the presence of the
employee; and designate persons who should retain custody in all cases. Employers
may also want to obtain dual samples (split the samples of a single test) in the event
further testing is needed, e.g., to confirm a positive test.
The importance of properly selecting a testing laboratory cannot be overemphasized.
An employer must select a reputable and reliable facility that is licensed by the
appropriate state and federal authorities and has experience testing for the presence of
alcohol, drugs, or other controlled substances. In short, the employer should determine
whether the laboratory has the proper test equipment, whether the tests are run properly
with competent technicians, and whether the samples are properly handled, stored, and
treated.
Confidentiality of Tests
It is essential that positive test results are not communicated to other employees or
persons outside of the company. The laboratory should report the results to the
employer in a confidential matter. Access to this information and its dissemination
should be limited to only that core group of managers who would need to have
knowledge of the test results.
Similarly, the fact that an applicant chooses to remove himself from consideration for
employment rather than submit to a drug test must not be disclosed outside of the core
management group. Strict confidentiality is required because an unwarranted disclosure
could subject the employer to significant monetary liability for defamation or invasion of
privacy claims.
Psychological Testing
Psychological testing is becoming a commonplace method
of determining whether an applicant is suited for a position
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requiring a particular mental characteristic. Such tests can help identify job applicants who
have psychological problems, those who lack interpersonal skills, and those prone to
violence. Psychological testing is prohibited at the preemployment (not post-offer stage)
under the ADA if it constitutes a medical examination, i.e., if tests are (1) designed to
provide evidence of a medical disorder or impairment, (2) used to assess whether an
applicant has a mental impairment, or (3) used to assess general psychological health.
Additionally, these tests will violate the ADA if they are likely to elicit information which would
disclose a mental disability. Under some states laws, such tests are permissible only if they
are directly related to the specific requirements of the job. It is advisable that legal counsel
be contacted for legality assistance with psychological testing in the company’s particular
state.
For upper level or high stress positions, many employers are using psychological
evaluations to determine an applicant’s compatibility with the position sought, the company,
or its management team. As a practical matter, however, psychological testing should be
used only after there is verifiable data regarding the current employment force. As an
example, to screen out an applicant because he is too aggressive, when the current
employees performing similar jobs also have similar traits, means that the psychological test
is not a valid predictor of the applicant’s qualifications. Ideally; therefore, the employer using
psychological testing would evaluate its current employees to determine the psychological
profile of those employees successfully performing the job. Otherwise, the employer is
unlikely to establish that the psychological testing is valid in the defense of any
discriminatory hiring claim. Unless willing to undertake validation of the study, an employer
should consider carefully whether the need for psychological testing outweighs its potential
risks.
Often because of the size of its workforce or the desire for expediency, an employer does
not establish its own validation criteria, but rather uses a general population validation guide.
As an example, the employer may complete a questionnaire which the psychological
evaluator then uses to establish a psychological profile of the person who will succeed in the
position being recruited. This process is often suspect, since the employer representative
completing the questionnaire will often make subjective, invalidated judgments in
responding to the questionnaire. To the extent possible, it is better to have the
psychological evaluator make these judgments by interviewing managers and human
resource persons related to the position, observing the job, and evaluating the employer’s
culture. The employer’s position is more defensible as a result of this process, simply
because a trained professional has made the judgments rather than the employer.
If a general validation or specific validation study is done, the employer must ensure that
study does not result in protected employee segments (e.g., minorities or women) being
disproportionately excluded. If a specific study is done and the incumbents have both
minority and female representation, validation can be accomplished. However, if specific
study is not done, then the psychological factors identified will have to be validated based on
objective data that minorities and females are not being disproportionately screened.
Generally, psychological testing is best used only for high level managerial positions and
professional positions with a limited population, rather than as a general testing tool, given
the difficulties in validating the test.
A number of companies market tests claiming to determine an applicant’s honesty or
integrity. These tests are suspect, since they tend to exclude high numbers of minorities,
and the questions cannot be objectively demonstrated as a predictor of honesty or integrity.
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An employee’s prior employment record and past experiences are generally a better
indication of an applicant’s future propensities than such tests.
Employers should make certain to ask the company providing the test (prior to administering
the test) whether or not the test has been validated, in the event the test is later challenged.
Validation of a test can counter a disparate impact claim (i.e., a claim that the test adversely
impacted a “protected group” more harshly than another). The Uniform Guidelines adopted
by the EEOC, the Department of Labor, and the Department of Justice provide the current
framework for determining the proper use of selection procedures and provide standards for
validation studies.
Lie-Detector Testing
Most private sector employees are barred from requiring an employee or job applicant to
take a lie- detector test. Most also are barred from requesting or suggesting same. This is a
law under the federal Employee Polygraph Protection Act (P.L. 100-347). The law does
allow some limited exceptions in the private sector and does not apply to the U.S.
government or any state or local government, or political subdivision.
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SAMPLE FUNCTIONAL SCREEN TEST
Company
___________________________________
Position
Custodian
Applicant
_______________________________ Date_________________
TEST DESCRIPTION
CRITICAL DEMANDS
TESTING
MET
NOT MET
MAXIMUM LIFT
Floor to Waist
55 lbs.
(25,40,55)
_____
_____
Waist to Waist
55 lbs. (28” to 36”)
(20,40,55)
_____
_____
Waist to Crown
45 lbs. (36” to 60”)
(25,35,45)
_____
_____
Front Carry
55 lbs. (25’)
(20,40,55)
_____
_____
Push (Vert./Up)
56 lbs., up to 60”
3 trials
_____
_____
Push/Pull Sled (Horiz.)
60 lbs., at 36”
3 reps
_____
_____
Unilateral Carry
20 lbs.
8 laps
_____
_____
Front Carry/Walk
11 lbs.
10 laps
_____
_____
Elevated Work
OH
2 minutes
_____
_____
Forward Bending/Sitting
3 minutes
_____
_____
Forward Bending/Standing
2 minutes
_____
_____
Mopping
5 minutes
_____
_____
Sustained Squat/Knee/Crouch
2 minutes
_____
_____
Stepladder Climb
4 steps
5 times
_____
_____
Stair Climbing with
Unilateral Carry
42 lbs., for 10 steps
2 times
_____
_____
CIRCUIT (1x)
Rotation
COMMENTS:
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Physical abilities (do/do not) match the functional requirements of the job description.
___________________________________________
_____________________________
EVALUATOR
DATE
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EMPLOYEE PERFORMANCE REVIEW
Employee _____________________________________________________________
Position _______________________________________________________________
Evaluator ______________________________________________________________
Evaluator’s Position _____________________________________________________
Instructions to Evaluator: Each rating category must be accompanied by written comments
explaining the rating. Use additional pages as necessary. Objective, work-related examples
should be used whenever possible.
Ratings Definitions
Excellent:
Performance always exceeds requirements and is surpassed by few
employees.
Superior:
Performance exceeds requirements most of the time. Consistently and
noticeably above average.
Average:
Performance meets job expectations.
Substandard:
Performance requires improvement.
Unsatisfactory: Performance below standard in many areas. Immediate improvement needed
in order to retain position.
Knowledge of Job: Knows job to be performed and most efficient way to perform it. Knows
company policies and procedures.
Excellent
Comments: ____________________________________________________
Superior
____________________________________________________
Average
____________________________________________________
Substandard
_____________________________________________________
Unsatisfactory
_____________________________________________________
Quality of Work: Job is done efficiently, on time, without disruption to people or operations,
and without mistakes.
Excellent
Comments: ____________________________________________________
Superior
____________________________________________________
Average
____________________________________________________
Substandard
____________________________________________________
Unsatisfactory
____________________________________________________
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Reliability: Attendance is good; employee requires minimal supervision and direction.
Excellent
Comments: ____________________________________________________
Superior
____________________________________________________
Average
____________________________________________________
Substandard
____________________________________________________
Unsatisfactory
____________________________________________________
Responsibility: Self-starter, helps others when needed, flexible, shows desire to master job
and improve self and job, takes pride in work.
Excellent
Comments: ____________________________________________________
Superior
____________________________________________________
Average
____________________________________________________
Substandard
____________________________________________________
Unsatisfactory
____________________________________________________
Cooperation: Works well with peers and supervisors; shows maturity, stability.
Excellent
Comments: ____________________________________________________
Superior
____________________________________________________
Average
____________________________________________________
Substandard
____________________________________________________
Unsatisfactory
____________________________________________________
Judgment: Exercises sound judgment and discretion in focusing on job goals, establishing
priorities, and reacting to unexpected situations.
Excellent
Comments: ____________________________________________________
Superior
____________________________________________________
Average
____________________________________________________
Substandard
____________________________________________________
Unsatisfactory
____________________________________________________
Overall Rating:
Top 20%
Comments: ___________________________________________________
Second 20%
___________________________________________________
Middle 20%
___________________________________________________
Fourth 20%
___________________________________________________
Bottom 20%
___________________________________________________
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Other Items Counseled:
____________________________________________________________________________
____________________________________________________________________________
Strongest Assets:
____________________________________________________________________________
____________________________________________________________________________
Areas Requiring Improvement:
____________________________________________________________________________
____________________________________________________________________________
_______________________________________
_______________________
Evaluator’s Signature
Date
A copy of this report has been provided to me and discussed.
_______________________________________________
_______________________
Evaluator’s Signature
Date
Employee’s Comments _________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
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NEW EMPLOYEE ORIENTATION CHECKLIST
The following checklist contains topics that your company should consider discussing with the
new employee plus company forms that should be completed by the employee before starting
work. The list may not be all-inclusive.
Company Information
† Company Mission Statement
† Guiding Beliefs and Corporate Strategic Plan
† Computer and Telephone Use
† Privacy Protection
† Ergonomics
Employment Forms
† W4 Tax Form (Federal, State, Local)
† I-9 Immigration Form
† Insurance Forms (Health, Life, Disability, Vision, Dental)
† Retirement Plans (401K, Pension)
† Acknowledgment of Duties and Responsibilities
† Acknowledgment of Performance Management Program
† Acknowledgement of Employee Handbook
Employee Handbook
† Pay Periods, Pay Days, Holidays
† Workday/Breaks/Lunch Periods
† Time Cards
† Expense Reports
† Parking
† Employee Assistance Program (EAP), if applicable
† Security Badges/Building Access
† Company Policies
† Notifications and Employee Warning Notice
† Employment Posters
† Training Opportunities
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Safety and Health Procedures
† Safety Rules & Regulations
† Personal Protective Equipment Required/Issued
† Injury Reporting
Department/Building Responsibilities
† Introduction to Supervisor
† Tour of Facilities
•
Fire Exits
•
Fire Extinguisher Location
•
Time Clock Location
•
Employee Parking
•
Locker, Washroom, Shower, Eye Wash
•
Lunch/Break Area
•
Work Area (cubicle, office, workstation)
•
Office Supplies
† Introduction to Coworkers
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IDENTIFICATION/ELIGIBILITY TO WORK
The Immigration Reform and Control Act of 1986 requires that all employers and agencies that
recruit for a fee verify the identity and eligibility to work of each person to be hired. Before hiring
takes place, the applicants must be required to document their identity and eligibility to work in
the United States; records of the documentation must be maintained.
Any one of the following five documents will establish BOTH identity and eligibility:
•
U.S. passport
•
Certificate of U.S. citizenship
•
Certificate of naturalization
•
Alien registration card with photograph
•
Unexpired foreign passport, with employment authorization attached
Another approach is to use two documents—one establishing identity and the other
demonstrating eligibility to work. In this instance, two sources used in tandem meet the legal
requirements.
•
State-issued driver’s license
•
State-issued identification card with photo
•
U.S. military card
Documents that demonstrate employment eligibility are:
•
Birth certificate
•
Original Social Security card
•
Unexpired employment authorization issued by the U.S. Immigration and
Naturalization Service
A complete list of documents that are acceptable as proof is available from your nearest office
of the Immigration and Naturalization Service (INS).
Employers are required to complete an I-9 Form for each new employee to verify the individual’s
eligibility to work in the United States. Compliance is enforced by the Immigration and
Naturalization Service.
As the I-9 Form requires an employer to review photograph
identification of the individual, many employers have a practice of retaining a photocopy of the
identification as part of the I-9 Form process. As the identification and photo may reveal an
individual’s race, color, and national origin, it is best to retain the completed I-9 Forms separate
from the employee’s personnel files. The forms must be retained for 3 years after the
employment begins or 1 year after the employment is terminated, whichever is later.
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EMPLOYMENT POSTERS
Federal and state laws require an employer to post notices of an employee’s rights under
various laws. The notices must be of current law and be posted in a conspicuous location,
accessible to all employees, and be the most current revision. Common locations for postings
include employee lunchrooms, adjacent to the time clock, locker rooms, etc.
The following posters, at a minimum, must be displayed:
•
Fair Employment Practices
•
Wage and Hour
•
Workers’ Compensation
•
Occupational Safety and Health Administration (OSHA)
These employment posters are available on the World Wide Web, free in most cases, and
through your state employment agency.
ANNUAL NOTICE TO EMPLOYEES
Use of Annual Notice to Employees
It is important that all employees be made aware of the employer’s policies and expectations as
to behavior in the workplace. The establishment and dissemination of certain employment
policies (a sexual harassment policy, for example) can be a significant factor in the defense of
an employment complaint. In the absence of an Employee Handbook establishing company
policy, an annual distribution of a notice to employees is required to qualify for Employment
Practices Liability Insurance (EPLI) Coverage. The notice process must include obtaining a
signed acknowledgement of receipt from the employee to be retained in the personnel file. The
notice must be reviewed with your legal counsel so that it is revised to conform to applicable
state and local requirements and your particular employment practices, but a sample is attached
for reference. Please note: two (2) sample notices have been provided at the end of this
section. One applies to employees covered by the federal Family and Medical Leave Act
(FMLA) and one for employees not covered by the Act. Please review your status under the
federal applicable Family Medical Leave Act, and any applicable state laws with legal counsel to
determine compliance requirements.
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SAMPLE ANNUAL NOTICE TO EMPLOYEE - FMLA COMPLIANCE INCLUDED
NOTE: This sample Annual Notice is provided to assist you in your risk management program.
It is not legal advice and should not be used as a substitute for review of policy requirements
with legal counsel. The sample Annual Notice includes a policy statement to comply with the
requirements of the Federal FMLA, applicable to employers of 50 or more employees witin a 75
mile radius. Various states have enacted family leave laws which provide additional benefits
and/or may apply to employers of fewer than 50 employees. The FMLA policy statements
should be reviewed by legal counsel to ascertain what, if any, changes may be required to
comply with applicable state law.
To All Employees of [XYZ Corp.]:
The success of the Company depends on each of us, its officers and employees, and our daily
interactions with each other, with visitors and with the customers we serve. This memo serves
to highlight several important Company policies.
Equal Employment Opportunity - The Company is an equal opportunity employer and
complies with applicable state and federal fair employment practices laws. The Company does
not discriminate against employees or applicants because of race, color, religion, national origin
or ancestry, age, past or present disability, sex, or any other characteristic protected under
applicable state and federal laws.
Discrimination - It is our Company's policy to prohibit any type of discrimination of any
employee by a supervisor, co-worker, or other individual in the workplace or any other
environment relating to work activities. The Company has committed to maintaining a work
environment free from any form of discrimination, including that based on race, color, religion,
sex, age, national origin, sexual preference, ancestry, disability, or marital status or any
protected category under state or federal law.
Sexual Harassment - It is our Company's policy to prohibit harassment of one employee by
another employee or supervisor on the basis of sex. The purpose of this policy is not to
regulate our employees’ personal morality. Rather, it is to ensure that, in the workplace, no
employee harasses another on the basis of sex. While it is not easy to define precisely what
harassment is, it certainly includes unwelcome sexual advances, requests for sexual favors and
other verbal or physical contact of a sexual nature such as uninvited touching or sexually related
comments. Any employee who feels that he or she has been subjected to sexual harassment
should immediately report the matter to his/her supervisor or another supervisor, the designated
Human Resources officer or the President of the Company. Violations of this policy may result
in disciplinary action up to and including discharge.
Resolution of Complaints - We encourage you to bring your questions, suggestions and
complaints to our attention. We will give careful consideration to each of these in a continuing
effort to improve our operation. It there is anything about your job that is bothering you, let's get
it out in the open and talk about it. Here are specific steps you may take:
First, if you feel you have a problem, please present the situation to your immediate supervisor
so that the problem can be settled quickly. Past experience has proven that most problems can
be settled through a basic examination and discussion of the facts with your immediate
supervisor.
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If you are not satisfied with your supervisor's response, or if for some reason you do not wish to
bring the problem to your supervisor, you may wish to discuss it with your department/division
head. Your department/division head will review the matter and attempt to reach a satisfactory
resolution.
If you are still not satisfied, you may discuss your question or problem with Human Resources.
We want to provide you every opportunity to discuss your problems freely.
Family and Medical Leave Policy - Attached is a copy of the Company's Family and Medical
Leave Policy.
Company Policies - The Company reserves the right to modify working conditions, policies,
procedures, and wages to modify or discontinue benefits at its discretion, without notice and
without employee consent.
It is your responsibility to become familiar with the policies outlined above and in other Company
manuals. If you have any questions or comments about your work, please feel free to talk with
your manager or to call or meet with [the designated Human Resources representative].
Please confirm your receipt of this memo by signing and returning the enclosed copy to the [the
Designated Human Resources Representatives].
By: ____________________________________
President
Acknowledgement of Receipt
I acknowledge that I have received a copy of this policy guideline and understand its contents.
Date: ______________________________________
Signature: __________________________________
The policies highlighted in this notice and in any other Company manual are not a contract of
employment between the Company and its employees. Any individual's employment may be
terminated with or without cause, and with or without notice, at any time at the option of the
Company or its employee.
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SAMPLE ANNUAL NOTICE TO EMPLOYEE - NO FMLA COMPLIANCE
NOTE: This sample Annual Notice is provided to assist you in your risk management program.
It is not legal advice and should not be used as a substitute for review of policy requirements
with legal counsel. The sample Annual Notice does not include a policy statement to comply
with the requirements of the Federal Family and Medical Leave Act, applicable to employers of
50 or more employees. Various states have enacted family leave laws which may apply to
employers of fewer than 50 employees. Applicable state law should be reviewed with legal
counsel to determine what, if any, compliance may be required.
To All Employees of [XYZ Corp.]:
The success of the Company depends on each of us, its officers and employees, and our daily
interactions with each other, with visitors and with the customers we serve. This memo serves
to highlight several important Company policies.
Equal Employment Opportunity - The Company is an equal opportunity employer and
complies with applicable state and federal fair employment practices laws. The Company does
not discriminate against employees or applicants because of race, color, religion, national origin
or ancestry, age, past or present disability, sex, or any other characteristic protected under
applicable state and federal laws.
Discrimination - It is our Company's policy to prohibit any type of discrimination of any
employee by a supervisor, co-worker, or other individual in the workplace or any other
environment relating to work activities. The Company has committed to maintaining a work
environment free from any form of discrimination, including that based on race, color, religion,
sex, age, national origin, sexual preference, ancestry, disability, or marital status or any
protected category under state or federal law.
Sexual Harassment - It is our Company's policy to prohibit harassment of one employee by
another employee or supervisor on the basis of sex. The purpose of this policy is not to
regulate our employees’ personal morality. Rather, it is to ensure that, in the workplace, no
employee harasses another on the basis of sex. While it is not easy to define precisely what
harassment is, it certainly includes unwelcome sexual advances, requests for sexual favors and
other verbal or physical contact of a sexual nature such as uninvited touching or sexually related
comments. Any employee who feels that he or she has been subjected to sexual harassment
should immediately report the matter to his/her supervisor or another supervisor, the designated
Human Resources officer or the President of the Company. Violations of this policy may result
in disciplinary action up to and including discharge.
Resolution of Complaints - We encourage you to bring your questions, suggestions and
complaints to our attention. We will give careful consideration to each of these in a continuing
effort to improve our operation. It there is anything about your job that is bothering you, let's get
it out in the open and talk about it. Here are specific steps you may take:
First, if you feel you have a problem, please present the situation to your immediate supervisor
so that the problem can be settled quickly. Past experience has proven that most problems can
be settled through a basic examination and discussion of the facts with your immediate
supervisor.
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Employment Practices
If you are not satisfied with your supervisor's response, or if for some reason you do not wish to
bring the problem to your supervisor, you may wish to discuss it with your department/division
head. Your department/division head will review the matter and attempt to reach a satisfactory
resolution.
If you are still not satisfied, you may discuss your question or problem with Human Resources.
We want to provide you every opportunity to discuss your problems freely.
Company Policies - The Company reserves the right to modify working conditions, policies,
procedures, and wages to modify or discontinue benefits at its discretion, without notice and
without employee consent.
It is your responsibility to become familiar with the policies outlines above and in other Company
manuals. If you have any questions or comments about your work, please feel free to talk with
your manager or to call or meet with [the designated Human Resources representative].
Please confirm your receipt of this memo by signing and returning the enclosed copy to the [the
Designated Human Resources Representatives].
By: ____________________________________
President
Acknowledgement of Receipt
I acknowledge that I have received a copy of this policy guideline and understand its contents.
Date: ______________________________________
Signature: __________________________________
The policies highlighted in this notice and in any other Company manual are not a contract of
employment between the Company and its employees. Any individual's employment may be
terminated with or without cause, and with or without notice, at any time at the option of the
Company or its employee.
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FAMILY AND MEDICAL LEAVE POLICY - FEDERAL
Employers covered. Employers of 50 or more in at least 20 weeks of the current or preceding
year.
The Leave Policy. You are eligible to take up to 12 weeks of unpaid family/medical leave
within any 12 month period and be restored to the same or an equivalent position upon your
return from leave, provided you; (1) have worked for the Company for at least 12 months, and
for at least 1250 hours in the last 12 months; and (2) are employed at a worksite that has 50 or
more employees within 75 miles [Companies must specify how to calculate the 12 month
period. We recommend the "rolling" 12-month method.].
Reasons for Leave. You may take family/medical leave for any of the following reason: (1) the
birth of a son or daughter and in order to care for such son or daughter; (2) the placement of a
son or daughter with you for adoption or foster care in order to care for the newly placed son or
daughter; (3) to care for a spouse, son, daughter, or parent ("covered relation") with a serious
health condition; or (4) because of your own serious health condition which renders you unable
to perform an essential function of your position. Leave because of reason "1" or "2" must be
completed within the 12 month period beginning on the date of birth or placement. In addition,
spouses employed by the Company who request leave because of reason "1" or "2" or to care
for an employee's parent with a serious health condition may only take a combined total of 12
weeks leave during any 12 month period.
Notice of Leave. If your family/medical leave is foreseeable, you must give the Company at
least 30 days prior written notice. If this is not possible, you must at least give notice as soon as
practicable (within 1 to 2 business days of learning of your need for leave). Failure to provide
such notice may be grounds for delay of leave. Additionally, if you are planning a medical
treatment you must consult with the Company first regarding the dates of such treatment.
Where the need for leave is not foreseeable, you are expected to notify the Company within 1 to
2 business days of learning of your need for leave, except in extraordinary circumstances. The
Company has Requests for Family/Medical Leave forms available from the Human Resources
Department. You should use these forms when requesting leave.
Medical Certification. If you are requesting leave because of your own or a covered relation's
serious health condition, you and the relevant health care provider must supply appropriate
medical certification. You may obtain Medical Certification Forms from the Human Resources
Department. When you request leave, the Company will notify you of the requirement for
medical certification and when it is due (at least 15 days after you request leave). If you provide
at least 30 days notice of medical leave, you should also provide the medical certification before
leave begins. Failure to provide requested medical certification in a timely manner may result in
denial of leave until it is provided.
The Company, at its expense, may require an examination by a second health care provider
designated by the Company, if it reasonably doubts the medical certification you initially provide.
If the second health care provider's opinion conflicts with the original medical certification, the
Company, at its expense, may require a third, mutually agreeable, health care provider to
conduct an examination and provide a final and binding opinion. The Company may require
subsequent medical certification. Failure to provide requested certification within 15 days, if
such is practicable, may result in delay of further leave until it is provided.
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Employment Practices
Reporting while on Leave. If you take leave because of your own serious health condition or
to care for a covered relation, you must contact the Company on [insert period] regarding the
status of the condition and your intentions to return to work. In addition, you must give notice
as soon as practicable (within 2 business days if feasible) if the dates of leave change or
are extended or initially were unknown.
Leave is Unpaid. Family/medical leave is unpaid leave [although you may be eligible for
short or long-term disability payments and/or workers’ compensation benefits under
those insurance plans. These plans are described elsewhere in the handbook.] If you
request leave because of a birth, adoption or foster care placement of a child, any accrued paid
vacation, [personal leave or family leave] first will be substituted for unpaid family/medical
leave. If you request leave because of your own serious health condition, or to care for a
covered relation with a serious health condition, any accrued paid vacation [personal leave,
family or medical/sick leave] first will be substituted for any unpaid family/medical leave. The
substitution of paid leave time for unpaid leave time does not extend the 12 week leave period.
Further, in no case can the substitution of paid leave time for unpaid leave time result in your
receipt of more than 100% of your salary. Your family/medical leave runs concurrently with
other types of leave (i.e., paid vacation). [Employers may elect to make leave paid or
unpaid. The bracketed material must be modified depending on whether the Company
provides paid personal, family or medical/sick leave and under what circumstances these
paid leaves may be used.]
Medical and other Benefits. During an approved family/medical leave, the Company will
maintain your health benefits, as if you continued to be actively employed. If paid leave is
substituted for unpaid family/medical leave, the Company will deduct your portion of the health
plan premium as a regular payroll deduction. If your leave is unpaid, you must pay your portion
of the premium through [employers should specify the method they wish to use]. Your
health care coverage will cease if your premium payment is more than 30 days late. If your
payment is more than 15 days late, we will send you a letter to this effect. If we do not receive
your co-payment within 15 days of this letter, your coverage may cease. If you elect not to
return to work for at least 20 calendar days at the end of the leave period, you will be required to
reimburse the Company for the cost of the health benefit premiums paid by the Company for
maintaining coverage during your unpaid leave, unless you cannot return to work because of a
serious health condition or other circumstances beyond your control. [The Company must
decide what, if any, other benefits will continue to accrue during leave periods. There is
no obligation to continue to provide or accrue any benefits other than health care under
the FMLA. The Company can only recover the employee portion of premiums for
benefits, other than health care benefits, if the employee fails to return after the leave.]
Exemption for Highly Compensated Employees. Highly compensated employees (i.e.,
highest paid 10% of employees at a worksite or within 75 miles of that worksite) may not be
returned to their former or equivalent position following a leave if restoration of employment will
cause a substantial economic injury to the Company. (This fact-specific determination will be
made by the Company on a case-by-case basis.) The Company will notify you if you qualify as
a "highly compensated" employee, if the Company intends to deny reinstatement and of your
rights in such instances. [This exception is so difficult to satisfy, employers may wish to
delete reference to it.]
Intermittent and Reduced Schedule Leave. Leave because of a serious health condition may
be taken intermittently (in separate blocks of time due to a single health condition) or on a
reduced leave schedule (reducing the usual number of hours you work per workweek or
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Employment Practices
workday) if medically necessary. If leave is unpaid, the Company will reduce your salary based
on the amount of time actually worked. In addition, while you are on an intermittent or reduce
schedule leave, the Company may temporarily transfer you to an available alternative position
which better accommodates your recurring leave and which has equivalent pay and benefits.
Returning from Leave. If you take leave because of your own serious health condition,
(except if you are taking intermittent leave) you are required to provide medical certification that
you are fit to resume work. You may obtain Return to Work Medical Certification Forms from
the Human Resources Department. Employees failing to provide the Return to Work Medical
Certification Form will not be permitted to resume work until it is provided.
Extended Leave for Serious Health Condition. [Optional, based on a typical disability pay
and extended leave policy.] Leave taken because of your own serious health condition
may be extended on a month-to-month basis for a maximum of an additional [
]
weeks upon: (1) written request to the Company; (2) proof that the serious health
condition has continued; and (3) approval by the Company (which is subject to its
business needs). If you do not return to work on the originally scheduled return date nor
request in advance an extension of the agreed upon leave with appropriate
documentation, you will be deemed to have voluntarily terminated your employment with
the Company. If you request an extension of your leave beyond the initial 12 week
period, you must submit medical certification of your continued serious health condition
in advance for each month that the leave is extended. Reinstatement is not guaranteed
on an extended leave and will depend on Company needs.
State and Local Laws and other Company Policies. Where State or local laws offer more
protections or benefits to employees, the protections or benefits provided by such laws will
apply.
Definitions. [Optional] For the purposes of this policy, the following definitions apply:
"Spouse" is defined in accordance with applicable State law of the state where the employee
resides, including common law marriages where recognized by the state where the employee
resides.
"Parent" includes biological parents and individuals who acted as your parents, but does not
include parent-in-law.
"Son" or "daughter" includes biological, adopted, foster children, stepchildren, legal wards, and
other persons for whom you act in the capacity of a parent and who is under 18 years of age or
over 18 years of age but incapable of caring for themselves because of a physical or mental
disability.
"Serious Health Condition" means an illness, injury, impairment, or physical or mental condition
which involves: (1) "Inpatient care," meaning an overnight stay in a hospital, hospice or
residential care facility, including any period of "incapacity" or any subsequent "treatment" in
connection with such inpatient care; or (2) Continuing treatment "by a health care provider,"
meaning an incapacity of more than three consecutive calendar days; and (3) two or more
treatments by a health care provider, by a nurse or physician's assistant under direct
supervision of a health care provider; or by a provider of health care services (e.g., physical
therapist) under orders or referral of a health care provider, or one treatment by a health care
provider which results in a "regimen of continuing treatment" under the supervision of the health
care provider (e.g., prescription medication). Any period of incapacity because of pregnancy or
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prenatal care (even without treatment by a health care provider during the absence and even if
the absence is less than 3 days (e.g., morning sickness); or any period of incapacity because of
a "chronic serious condition" (even without treatment by a health care provider during the
absence and even if the absence is less than 3 days: e.g., asthma attack, migraine headaches,
etc.; or any period of absence to receive multiple treatments by health care providers or provider
of health care services (under order or referral of a health care provider) for reconstructive
surgery after an accident, injury, or for a condition that would likely result in a period of
incapacity of more than 3 consecutive calendar days if untreated: e.g., cancer (chemotherapy);
severe arthritis (physical therapy), kidney disease (dialysis).
"Continuing treatment" means (1) two or more treatments by a health care provider; (2) two or
more treatments by a provider of health care services [e.g., physical therapist] on referral by or
under orders of a health care provider; (3) at least one treatment by a health care provider
which results is a regimen of continuing treatment under the supervision of the health care
provider [e.g., a program of medication or therapy]; or (4) under the supervision of, although not
actively treated by, a health care provider for a serious long-term or chronic condition or
disability which cannot be cured [e.g., Alzheimer's or severe stroke].
"Health care provider" means: (1) an MD or OD licensed by the State (or county in which he/she
practices; (2) podiatrists, dentists, clinical psychologists, optometrists, chiropractors (limited
treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist) authorized to practice under the State law; (3) nurse
practitioners and nurse-midwives authorized under State law; (4) Christian Science practitioners
(may be required to submit to second or third certification through examination - not treatment of
a health care provider); (5) certified social workers; (6) a health care provider also includes a
health care provider who practices in a foreign country in accordance with the laws of that
country and; (7) any other health care provider from whom the employer or the employee's
group health plan benefits manager will accept certification of the existence of a serious health
condition to substantiate a claim for benefits.
"Needed to care for" a family member encompasses: (1) physical and psychological care of a
child, spouse or parent with a serious health condition; and (2) where the employee is needed to
fill in for others providing care or to arrange for third party care of a child, spouse or parent who
is receiving inpatient or home care.
The phase "unable to perform the functions of his/her job" means an employee is: (1) unable to
work at all; or (2) unable to perform any one of the essential functions of his/her position at the
time notice is given or leave commenced, whichever is earlier. The term "essential functions" is
borrowed from the Americans with Disabilities Act ("ADA") to mean "the fundamental job duties
of the employment position," but does not include the marginal functions of the position.
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EMPLOYEE HANDBOOK
While each company may have more or less information applicable to their employees, certain
information is recommended for inclusion in the employee handbook. Although the employee
handbook can be an excellent communication tool for your employees, if poorly drafted, the
handbook could impose a higher standard of conduct for the employee than is required by law
and may be construed to create an express or implied contract of employment.
The employee handbook should begin with a provision statement similar to the following
example:
EMPLOYEE HANDBOOK PROVISION
The Employee Handbook does not constitute a contract.
The Employee Handbook has been prepared as a general statement of Company policy and as
a guide to set forth those matters which affect you and your job. It is not intended to cover
every contingency or condition which may arise in your employment. From time to time this
handbook will be updated. New policies and guidelines will be added and others revised.
As a guideline, it is not intended to become expressly or implicitly a part of any agreement or
contract of employment. Where reference is made to insurance policies and coverages, the
express language of those insurance policies and endorsements thereto control.
The statements contained in this Handbook do not limit the right of either the Company or the
employee to terminate the employee’s employment or alter the method or amount of
compensation, with or without cause, at any time. The Company reserves the right to change
any and all policies, rules, and methods of operations and doing business at any time. No
representative of the Company, other than the Chairman and Chief Executive Officer or the
President and Chief Operating Officer of Employers Mutual Casualty Company, has any
authority to enter into any agreement for employment for any specified period of time, or to
make any agreement contrary to the foregoing, and then only if such agreement is in writing and
signed by the Chairman or President.
This Handbook supersedes all prior oral or written policies, rules, and guidelines.
The employee handbook should be distributed to all employees, including new hires on the first
day of employment. Your company should consider including in your company’s employee
handbook, but not be limited to, the following information.
Employee “At-Will” Statement
In the absence of an express employment contract of a definite duration, employment is
generally considered “at-will” and may be terminated for any reason (except if prohibited by
statute) or for no reason. An employment-at-will statement must be included in the following
documents:
•
Any employment application
•
Any employee handbook
•
The annual notice to employees
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•
The summary description of the company’s benefit programs
•
Any other booklets or policy statements disseminated to employees
Emergency Information
Information relevant to the safety of employees during emergency situations should be
provided and should include employees duties and responsibilities, if any, emergency
telephone numbers, notification methods to announce emergencies and to give “all clear”
signals, evacuation routes, and staging areas.
•
Bomb Threats
•
Earthquakes
•
Tornados
•
Hurricanes
•
Evacuation
•
Fire Alarms
•
Medical Emergencies
•
Fire and/or Smoke Odor
Employee Complaint
The employee handbook should include a procedure for resolution of complaints for
employment-related matters, including discrimination.
Handbook Changes/Modifications
To minimize the potential for legal challenge, the handbook should also contain a statement
reserving the right to interpret and change policies at management’s discretion in all
materials disseminated to employees.
Employee Benefits
The information presented in this section provides a ready source to employees concerning
company benefits which may include, but should not be limited to:
•
Paychecks
•
Time Away From Work (Vacation, Sick, Personal, Bereavement, etc.)
•
Insurance (Life, Medical, Dental, Vision, Disability, etc.)
•
Retirement (401K, Pension, etc.)
•
Company Investments (Stocks, etc.)
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Training/Education
All employees are responsible for complying with company policy and applicable laws and
regulations. Managers, supervisors and other employees involved in the employment
decision process (hiring, terminations, promotions, salary action) have the additional
responsibility to recognize when the actions of others may be placing the company at risk of
liability and take appropriate action to correct the situation. Training programs can be an
effective tool for communicating company policy, the legal implications and individual
employee/manager responsibilities in the workplace. For example, an education program
on sexual harassment can assure that the company policy is viable and operates in practice
to provide employees an avenue for raising an internal compliant and having it taken
seriously. Further, managers need to be made aware that an employer may be held liable if
the employer knew or should have known about the harassment (i.e., a supervisor
witnessed or was advised of the offending behavior). Some states, Connecticut, for
example, require sexual harassment training in the workplace.
Progressive Disciplinary Procedures
Warning notifications and disciplinary actions should also be discussed in this section of the
employee handbook.
The implementation of a progressive disciplinary practice or
procedure can be a useful risk management tool. A series of written warnings serves to
document the performance deficiencies. The written warnings further document that the
employee was advised of the deficiencies, given an opportunity to correct the performance
and was advised that a failure to improve could result in additional disciplinary action,
including termination. Written warnings can be an important factor in creating a perception
by the employee that he/she is treated fairly and in eliminating the employee's surprise
should continuing performance deficiencies result in termination.
A poorly drafted policy of progressive discipline can, however, increase the potential for
liability as it may be construed against an employer to create employee rights that would not
otherwise exist. It is important that any written progressive disciplinary policy retain
maximum flexibility for the employer to exercise its discretion to utilize the progressive
disciplinary process and to accelerate or skip steps in the process as it deems appropriate.
•
The deficiency in an employee’s performance.
•
That the employee was advised of the deficiency.
•
What the employee must do to correct the performance.
•
That failure to correct the deficiency could result in additional disciplinary action,
including termination.
Company Policies
This section of the employee handbook should include all company policies relevant to the
employee and employment. While policies and procedures are typically found in the
employee handbook, your company may elect an annual distribution of a notice to
employees. In either case, the employer should obtain a signed acknowledgement of
receipt from the employee to be retained in the personnel file. The notices, found either in
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the handbook or made available by annual distribution, should be reviewed and approved by
legal counsel to ensure compliance with applicable state and federal requirements.
Warning Notices
Warning notifications and disciplinary actions should also be discussed in this section of the
employee handbook.
The implementation of a progressive disciplinary practice or
procedure can be a useful risk management tool. A poorly drafted policy of progressive
discipline can, however, increase the potential for liability as it may be interpreted that an
employee has rights that are nonexistent.
It is important that any written progressive disciplinary policy retain maximum flexibility for
the employer to exercise discretion to use the progressive disciplinary process and to
accelerate or skip steps in the process, as deemed appropriate. A series of written
warnings serves to document:
•
The deficiency in an employee’s performance.
•
That the employee was advised of the deficiency.
•
What the employee must do to correct the performance.
•
That failure to correct the deficiency could result in additional disciplinary action,
including termination.
Acknowledgement
The handbook is not complete unless there is an acknowledgement form for the employee
to sign after he or she has been instructed on its contents. The employee’s signature not
only acknowledges receipt of the employee handbook, but also that the employee will
comply with its contents.
Date
The handbook should contain the date it was released for use. Revisions to the document
should be documented in some fashion, either by date or revision number/letter, to show
when the document was revised. A log should be maintained to record the scope of the
revisions made.
COMPANY POLICIES
The establishment and implementation of certain employment policies can be a significant factor
in the defense of an employment complaint. While it is not possible to list every policy that your
company may need, a list of common policies follows and should be considered for inclusion in
your employee handbook. An acknowledgement statement on each policy also ensures that
each employee has read and understands the policy and agrees to comply with it.
Disciplinary action for failure to comply with the policy should also be included in the policy.
Standard disciplinary forms should also be developed for use when disciplinary action is
necessary. Legal counsel should be consulted for assistance in the development and
implementation of policies and employee notices specific to your company operations.
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Your company’s handbook should include, but not be limited to the following policies.
•
Code of Conduct. A policy regarding how employees are expected to conduct
themselves during company business.
•
Equal Employment Opportunity. A policy regarding discrimination of employees while
employed and applicants seeking employment with the company.
•
Harassment/Sexual Harassment. A policy defining employee conduct toward fellow
employees or business associates which creates a hostile, intimidating, or offensive
work environment.
•
Alcohol/Drug Dependency. A policy defining alcohol/drug use by employees on/off the
job.
•
Bloodborne Pathogens. A policy to define safety precautions while administering first
aid, cleanup, and safe handling and disposal of blood or body fluid-contaminated
materials.
•
Workplace Safety. A policy defining an employee’s conduct and violence in the
workplace, weapons in the workplace, and safe work practices.
•
Vehicle Usage/Driving. A policy defining the operation of company vehicles, radar
detectors and jammers, passengers/hitchhikers, seat belt usage, accident reporting, and
motor vehicle records (MVR).
•
Company-Issued Equipment/Assets/Property. A policy restricting authorized uses of
company computers, cameras, test equipment, cell phones, protection of company
assets and property, etc.
•
Computer/Internet/E-Mail. A policy defining use of the internet and e-mail on company
computers.
•
Advertising and Marketing Conduct. A policy defining employee conduct while
representing the company in advertisements and other marketing ventures.
•
Gifts, Entertainment, Travel, and Discounts. A policy defining gifts, travel and
discounts to employees from a vendor or service provider.
•
Confidentiality. A policy defining confidentiality of employee discussions to prevent
disclosure of company operations, confidential and/or proprietary information, activities,
and other business affairs.
•
Family and Medical Leave Act (FMLA). A policy regarding employees’ access to and
rights under the FMLA for family emergencies.
•
Insider Trading. A policy to prohibit employees from engaging in securities transactions
on the basis of information received during normal business activities.
•
Travel and Entertainment Expenses. A policy to define acceptable travel and
entertainment expenditures and documentation required for reimbursement.
•
Absence/Tardiness Policy. A policy regarding absenteeism and tardiness.
•
Tobacco Policy. A policy regarding the use of tobacco on company property,
designated smoking areas and breaks.
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•
Nepotism Policy. A policy regarding family members working at the company and the
working relationship within the company organization.
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EMPLOYEE WARNING NOTICE
Employee ___________________________________________________________________
Supervisor _____________________________________
Previous Warnings
Oral
Date ______________________
Written
Date
By Whom
1st Warning
2nd Warning
3rd Warning
Employer Statement
Employee Statement
Date of incident ____ /____ /____
I _____ agree _____ disagree with
Employer’s statement. The reasons
are:
_______________________________________
______________________________
_______________________________________
______________________________
_______________________________________
______________________________
_______________________________________
______________________________
_________________
Employee Signature
___ /___ /___
Date
Action to be taken
Warning _______________ Suspension ________________
Dismissal ________________
Other _______________________________________________________________________
Consequences should incident occur again ______________________________________
____________________________________________________________________________
____________________________________________________________________________
I have read this warning and understand it.
_____________________________________
Employee Signature
_________________________________
Date
_____________________________________
Supervisor Signature
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Date
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