Best Practices for Hiring
Exceptional Management
Staff
These materials have been prepared by Poyner Spruill LLP for informational purposes
only and are not legal advice. This information is not intended to create, and receipt of it
does not constitute, an attorney-client relationship.
Use Detailed Job Descriptions
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Define all essential functions
Include key responsibilities and tasks
Include “and other duties as assigned”
List specific knowledge, skills, and abilities
List “minimum” required education and
experience needed
• List physical requirements for the job
Interviewing
Interviewing
• Interviews, and all other employee selection
procedures, are governed by state and federal
anti-discrimination laws, such as Title VII of the
Civil Rights Act of 1964.
• Avoid questions that tend to reveal protected
class characteristics such as race, national
origin, age, and sex, or that indicate a
preference for applicants depending on these
characteristics.
Many Laws Prohibit Discrimination
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Title VII of the Civil Rights Act
Age Discrimination in Employment
Americans with Disabilities Act
Family Medical Leave Act
Fair Labor Standards Act
REDA
Federal Law Impacts Interviews and Hiring
• Race
• Age
• Disability
– Actual
– Perceived
– By Association
• Ethnicity
– Color
– National Origin
Age
• Gender
• Religion
• Sexual Orientation
(probably)
Interviewing
• Use interviews to get to know the applicant.
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easy to talk with? attitude? smile?
• Ask challenging open ended questions:
– skills necessary to do the job
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strengths and weaknesses
previous accomplishments
relationships with prior employers and employees
communication style
“gaps” in employment history
• Conduct skills tests if necessary.
Interviewing Do’s and Don’ts
• You can reduce or eliminate problems with
employees through careful hiring practices.
• Use interviews, reference checks, and
applications to find employees with the
characteristics your company needs for success.
• Thorough interviews reveal:
– past discipline problems
– exaggerated skill claims
– difficult personalities
Things You Can and Cannot Ask
• Do not ask an applicant’s age, date of birth, or any
questions showing a preference for any age group.
– You may ask an applicant if he/she is over eighteen.
• Do not ask about an applicant’s place of birth or family
history.
– You may ask if an applicant is authorized to work in the
United States or an applicant’s ability to read or write
English or a foreign language if the job requires such.
Things You Can and Cannot Ask
• Do not ask if an applicant is married, single, divorced,
separated or engaged.
• Do not ask about an applicant’s family size, children’s
ages, family plans, child care arrangements, or a spouse’s
employment or salary.
– You may ask about an applicant’s ability to travel if
required by the job.
– You may ask about an applicant’s ability to meet work
schedule requirements.
Things You Can and Cannot Ask
• Do not ask about an applicant’s education beyond what
is related to the job requirements.
– You may ask about an applicant’s training, qualifications, and
work experience related to the duties and requirements of the
job.
• Do not ask about an applicant’s religion or what
religious holidays he/she observes.
• Do not ask if an applicant’s religion would prohibit
weekend or holiday work.
– You may ask about an applicant’s anticipated absences.
– You may ask if the applicant is available for weekend and
holiday work provided it is a job requirement.
Things You Can and Cannot Ask
• Do not ask about an applicant’s financial condition, loan
obligations, credit rating, or possible garnishments.
• Do not ask if the applicant owns or rents his/her
residence, or how long the applicant has lived at a
residence.
• Do not ask if an applicant owns a car unless use of a car
is a job requirement.
• Do not ask if an applicant has ever been arrested, but
you can ask if an applicant has ever been convicted.
Things You Can and Cannot Ask
• You may state attendance requirements
and ask if the applicant can meet them.
• You may ask the applicant about prior
work attendance and reject the applicant
on the basis of a poor attendance record
(but do not ask if the poor attendance
record was due to an illness or injury).
Disability Don'ts
• Do not ask about the applicant's health.
• Do not ask if the applicant has ever been
hospitalized, received counseling, or seen a
psychiatrist.
• Do not ask if the applicant has a drug or alcohol
problem.
• Do not ask about height, weight, physical or
mental condition, or medical history.
• Do not ask about any physical characteristics
such as scars, burns, or missing limbs.
Disability Don’ts
• Do not ask if the applicant has a disability or
medical condition that will prevent the person
from performing the job.
– You may ask if the person knows of any
reason that he/she cannot perform the
essential functions of the job.
– You may describe or demonstrate a job
function and ask all applicants if they can
perform the functions with or without
reasonable accommodation.
Resist Temptation!
• Do not get too comfortable. Resist the
temptation to follow-up with questions after
the interviewee has “opened the door.”
• If an applicant volunteers information about
a subject that should be off-limits, be polite,
but do not use it as an excuse to find out
more information.
– Drop your pen and stop taking notes.
Criminal Background Checks
EEOC Enforcement Guidance on
Use of Criminal Records
• Employers should NOT rely on arrest records as a
basis for screening applicants.
• Employer use of criminal conviction records to
screen applicants may have “disparate impact”
based on race and national origin. Disparate
treatment may also occur.
Disparate Impact Discrimination
• To meet the “job-related and consistent with
business necessity” standard, employers should:
– Develop a targeted screen considering:
• nature of the crime
• time elapsed
• nature of the job
– Assess each applicant individually.
Individualized Assessment
• Notice: Employer informs the individual that he/she may
be excluded from the job because of his/her past criminal
conduct.
• Opportunity to Explain: Applicant gets an opportunity to
explain why he/she should not be excluded despite his/her
past criminal conduct, and/or provides additional
information about the criminal conduct.
• Consider Mitigating Information: Employer considers
whether the individual’s explanation, or additional
information, shows he/she should not be excluded.
Inquiries into Credit History
Use of Credit History Under Scrutiny
• According to the EEOC:
– Inquiry into an applicant's current or past assets, liabilities,
or credit rating, including bankruptcy or garnishment, refusal
or cancellation of bonding, car ownership, rental or
ownership of a house, length of residence at an address,
charge accounts, furniture ownership, or bank accounts
generally should be avoided because they tend to impact
more adversely on minorities and females. Exceptions exist
if the employer can show that such information is essential
to the particular job in question.
• It will be difficult to establish business necessity, as there is little
evidence that credit is a factor in predicting job performance.
Use of Credit History Under Scrutiny
• Ten states have adopted statutes banning or limiting use of
credit checks in hiring.
• Several other states have bills pending.
• Most of the states with statutes have some exceptions
allowing credit checks for managers with access to funds or
other positions involving the handling of money.
• Federal and state FCRA laws are implicated when credit
checks are procured.
• A requirement of creditworthiness cannot be justified for most
jobs.
• BOTTOM LINE: Avoid performing credit checks on
applicants.
Pre-employment Examinations
Pre-employment Examinations
• Ensure that employment tests and other selection
procedures are properly validated for the positions and
purposes for which they are used.
• The test or selection procedure must be job-related, and
its results appropriate for the employer’s purpose.
• If a selection procedure screens out a protected group, the
employer should determine whether there is an equally
effective alternative selection procedure that has less
adverse impact and, if so, adopt the alternative procedure.
• Stay abreast of changes in job requirements and update
the test specifications or selection procedures accordingly.
Act Now!
• Develop a narrowly-tailored, multi-faceted
background check policy for criminal background
and credit checks.
• Eliminate automatic exclusions based on criminal
record.
• Adhere to EEOC’s guidance on criminal
background checks.
• Limit or eliminate credit checks on applicants.
• CHECK STATE LAWS!
Use of Social Media
How Companies Use Social Media
• Companies use social media to promote their
business and attract applicants.
• Companies use social media to gather information
or scout for prospective employees.
• Companies use social media to screen applicants.
• Companies use social media to stay connected to
their employees by engaging in social media
activities that interest them.
What You Find on Applicant Social Media
Profiles
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Education history
Work history
Career interests
Who the applicant knows / is connected to
Family information
Hobbies
Favorite music and movies
Political views
Religious views
Guess what else you might find. . . .
. . .TMI
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Drug and alcohol use
Arrest or criminal history
Sexual orientation or gender identity
Disabilities
Mental health issues
Whistleblower activity
Prior lawsuits or charges
Some Important Considerations
• Is it lawful to use this information?
–Protected characteristics/activity
–Lawful off-duty conduct
• Am I complying with FCRA?
• Is this information accurate or
otherwise worthy of consideration?
How Can I Minimize Risk?
• Adopt a clear policy (when, why, and what
information will be deemed relevant).
• Be consistent (what’s good for the goose is
good for the gander).
• Consider only reviewing social media after an
applicant has been selected for an interview or
received a conditional offer of employment.
Never Request Log-in Credentials
• Several states have passed laws making it
unlawful for any employer to ask any
prospective employee to provide any
username, password, or other related
account information in order to gain access
to a social networking website where that
prospective employee maintains an account
or profile.
E-Verify
• As of July 1, 2013, all employers in North Carolina with 25
or more employees must enroll in E-Verify. This only
counts employees in North Carolina for employers with
multi-state locations.
Thank you!