September 14, 2018
Author: Joel R. Hlavaty
Organization: Frantz Ward LLP
Recruitment and Hiring Documents
1. Job Descriptions
Before advertising or recruiting for a position, the employer should develop a comprehensive written job description which outlines all of the duties that are “essential functions” of the job. The written job description should set forth the standards which will enable the employer to make hiring decisions, to perform periodic evaluations, and to make disciplinary decisions including termination.
The employer should not include requirements which are not “job related” and which may exclude from consideration members of legally protected groups. For example, it is probably not advisable to require a four-year college degree for a clerical position, or require physical fitness for a sedentary position.
In developing job descriptions, an employer should begin by analyzing the job and interviewing supervisors and hourly employees regarding the specific requirements of the job. Depending upon the job at issue, an employer may want to consult with an occupational, ergonomic and/or functional capacities expert. Once all of this has been completed, the employer should draft a preliminary description for review by human resources, operations managers and, if appropriate, legal counsel. Finally, it is important to note that job descriptions should be reviewed and updated on a regular basis.
2. Job Advertisements
The job advertisement should describe essential functions of the job as set forth in the job description and set forth the qualifications of the job. The job advertisement should state that the employer is an equal opportunity employer, and it should not contain language which could be construed as promising advancement, raises or long term employment to applicants. The employer should avoid language in the advertisement which could be construed as being discriminatory. It is important that an employer adhere to the hiring requirements, as failure to do so often times leads to claims of discrimination.
3. The Employment Application
a. The “job-related” test for pre-employment inquiries
Federal courts and agencies have held that EEOC laws prohibit employers from making any pre-employment inquiries that are not job-related. Pre-employment inquiries that directly or indirectly result in or suggest a limitation of job opportunities because of age, race, sex, color, religion, national origin, or handicap usually will be treated as unlawful unless the employer can show that it has a valid reason for requesting the information.
b. Prohibited questions
Both the EEOC and various state fair employment agencies have issued guidelines listing specific “acceptable” and “unacceptable” questions. (See Handout.) In addition, the EEOC’s Technical Assistance Manual on the Americans with Disabilities Act contains information regarding questions that may not be asked on the job application, such as:
• How many days were you absent from work because of illness last year? (Pre-employment questions about illness may not be asked, because they may reveal the existence of a disability. However, an employer may provide the information on its attendance requirements and ask if an applicant will be able to meet these requirements.)
• Do you have any disabilities or impairments that may affect your performance in the position for which you are applying?
(This question should not be asked even if the applicant is requested in a follow-up question to identify accommodations that would enable job performance. Inquiries should not focus on applicant’s disabilities. The applicant may be asked about ability to perform specific job functions, with or without a reasonable accommodation.)
• Have you ever been treated for drug addiction or alcoholism?
(Information may not be requested regarding treatment for drug or alcohol addiction, because the ADA protects people addicted to drugs who have been successfully rehabilitated, or who are undergoing rehabilitation, from discrimination based on drug addiction.)
• Have you ever filed for workers’ compensation insurance? (An employer may not ask about an applicant’s workers’ compensation history at the pre-offer stage, but may obtain such information after making a conditional job offer. Such questions are prohibited because they are likely to reveal the existence of a disability. In addition, it is discriminatory under the ADA not to hire an individual with a disability because of speculation that the individual will cause increased workers’ compensation costs.)
c. The Applicant’s Acknowledgement
It is important that the applicant sign an acknowledgement so that he/she cannot later disclaim the information they have provided, and so that the employer has a written record of the parties’ understanding of some of the conditions surrounding the hiring of the applicant. Some important items to include in an acknowledgement are:
• An affirmation by the applicant that the information provided in the application is true;
• Acknowledgement by the applicant that any offer of employment is contingent upon successful completion of a pre-employment physical which will include drug and alcohol testing;
• Acknowledgement and permission by the applicant for the employer to conduct reference and background checks (also see the discussion below regarding the Fair Credit Reporting Act);
• Acknowledgement by the applicant that any offer of employment is contingent on timely producing documentation required by the Immigration Reform and Control Act of 1986; and
• Acknowledgement by the applicant that his or her employment is terminable-at-will.
4. Interviewing Prospective Employees
a. Interviewers should be trained
Interviewing applicants is one of the most important functions of an employer, as not only does an employer not want to violate EEO laws, it also wants to ensure that it is making a good hiring decision. It is therefore essential that interviewers be trained before they are allowed to engage in the process. Some important aspects of interviewing are:
• The interviewer should study all requirements of the job ahead of time;
• The interviewer should review the employment application and/or resume to determine whether additional information is needed prior to the interview;
• The interviewer should start the interview with rapport building, rather than highly personal questions. Let the applicant talk; don’t interrupt or talk down to the applicant;
• The interviewer should check questions off as they are asked. However, the interviewer should not make any notes on the employment application or resume; and
• The interviewer should evaluate applicants as soon as possible after the interview.
b. Examples of unacceptable interview questions:
• Questions about marital status, number of children, and childcare arrangements.
o Acceptable: May ask what hours an individual is available to work or specific times he/she cannot work.
• Where applicant or his/her parents were born or whether the individual is a US citizen.
o Acceptable: May ask if individual is eligible to work in the US.
• What is the applicant’s native language? May not ask how an applicant acquired the ability to read or speak a foreign language.
o Acceptable: May ask about languages the applicant speaks or writes fluently if they are part of the job.
• Questions about arrests.
o Acceptable: Questions about convictions may be acceptable in certain circumstances—See Section 7 below.
• Type of discharge received from the military.
o Acceptable: Ask whether individual served in the military, dates of service, rank, and training and work experience received in the military.
• Questions about church or religious affiliations.
• Questions eliciting the individual’s age, including indirect questions, such as date of high school graduation.
c. What you can ask applicants
Interviewers should make certain that the questions they ask are job-related and nondiscriminatory. An interviewer may not ask questions about a disability, but may obtain more specific information about the ability to perform job tasks and about any needed accommodation. Examples of subject areas that are typically job-related are:
• Education and training;
• Past work experience;
• Military work experience; and
• Relevant personal characteristics.
d. Interview Pitfalls
While potential pitfalls are many, two of the most important things for an interviewer to remember are:
• Avoid asking questions that are either not job-related or discriminatory—i.e., those listed above or others that may elicit information about legally protected characteristics; and
• Avoid “overselling” the job by making oral representations that could serve as the basis for implied contract or promissory estoppel claims—i.e., stating “this is a secure position,” “looking for a long-term commitment,” “grow with the company.”
5. Conduct reference checks on all prospective employees
Employers are being held liable for failing to conduct a reference check under the doctrine of negligent hiring. The negligent hiring doctrine has been applied to employers who failed to investigate the references of a doctor, taxi driver, security guard, mail delivery person, real estate agent, and office employee. Where the employer does investigate the qualifications of the applicant, liability will usually not be imposed for acts outside employee’s scope of employment. Also, where a routine reference check would not have disclosed a prior criminal conviction in another state, the employer was not held liable for negligent hiring. The adequacy and reasonableness of the employer’s investigation of the employee’s qualifications and character is a question for a judge or jury to decide.
6. Fair Credit Reporting Act & Limitations on Background Checks
Pursuant to amendments to the federal Fair Credit Reporting Act (“FCRA”), employers who engage certain third parties to perform background checks regarding job applicants or current employees in order to evaluate them for certain “employment purposes” must now satisfy a number of requirements. An employer’s failure to do so can result in significant civil and, in some circumstances, criminal penalties. Under the revised FCRA, an employer must observe the following steps when making an employment-related decision that is based on a “consumer report” prepared by a “consumer reporting agency.”
1. The employer must clearly and conspicuously disclose to the applicant or employee, in writing and in a separate document (i.e., not in an employment application) the fact that it intends to obtain a consumer report concerning the individual;
2. The employer must secure the consent of the applicant or employee for the employer to obtain such information;
3. Before obtaining a consumer report, the employer must certify to the consumer reporting agency that (a) it has complied with the disclosure and consent provisions of the FCRA, (b) it will comply with the FCRA’s requirements regarding adverse actions (No. 4 below), and (c) the information from the consumer report will not be used in violation of any federal or state equal opportunity laws or regulations;
4. Before taking any adverse employment action based in any way on the report, the employer must (a) provide the applicant or employee with a copy of the report, and (b) provide the applicant or employee with a description of the individual’s rights under the FCRA in the form prescribed by the Federal Trade Commission; and
5. After waiting a reasonable period of time, the employer may take an adverse employment action. In doing so, the employer must (a) provide oral, written, or electronic notice of the adverse action to the individual, (b) provide the individual orally, in writing, or electronically (i) the name, address, and telephone number (toll free if available) of the agency that furnished the report to the employer, and (ii) a statement that the agency did not make the decision to take the adverse action and is unable to provide the individual the specific reasons why the adverse action was taken, and (c) provide the individual an oral, written or electronic notice of the individual’s right (i) to obtain within 60 days a free copy of the report from the agency, and (ii) to dispute with the agency the accuracy or completeness of any information in the report furnished by the agency.
7. Consideration of Arrest and Conviction Records in Hiring Decisions
If a background check reveals that an applicant or employee has a criminal record, such as an arrest or a conviction, the employer must use the information in a manner that does not violate Title VII’s provisions against discrimination. Specifically, because statistics have demonstrated that African-American and Hispanic individuals have higher arrest and conviction rates than other groups, a denial of an employment opportunity based upon arrest or conviction records may be viewed as having a disparate impact on these protected groups, which may amount to unlawful employment discrimination. The United States Equal Employment Opportunity Commission’s (EEOC) April 2012 guidance addresses how employers may permissibly utilize criminal records for employment purposes:
1. Employers may not use an arrest record alone as grounds for denying an employment opportunity. However, an employer may consider the employee’s actual conduct underlying the arrest.
2. The EEOC considers blanket policies that exclude individuals from employment based upon conviction records to be unlawful.
3. Employers may make employment decisions based upon convictions that are job-related and consistent with business necessity. According to the EEOC, employers can show job-relatedness and business necessity through: (a) validation studies showing that the exclusion effectively links specific criminal conduct and its dangers with the risks inherent in the duties of a particular job (this is difficult to do); or (b) conducting a targeted screen to flag individuals who may be disqualified based upon their criminal history, and then giving those persons individual consideration with a chance to explain why the exclusion should not apply to their particular situation. While the EEOC states that an individualized assessment is not mandatory, it can help employers to avoid liability for discrimination claims. Indeed, the language of the EEOC guidance suggests that the EEOC expects employers to conduct individualized assessments.
4. The use of a “targeted screen” requires an employer to consider the nature and gravity of the crime, the time elapsed since the crime or the completion of a sentence, and the nature of the job involved.
5. Many states have enacted laws that exclude individuals with particular criminal histories from certain positions. While the EEOC guidance purports to preempt any state laws (but not federal laws) to the contrary, it is not yet clear whether the courts will adopt the EEOC’s position described in the guidance.
8. Pre-employment Physicals
The Americans with Disabilities Act (“ADA”), as well as the Health Insurance Portability and Accountability Act and state privacy laws, mandate certain procedures for the handling of medical information and prohibit an employer from revealing confidential medical information of applicants and employees. The following are some of the more significant restrictions imposed by the laws.
a. The ADA Permits Only Post-Offer Medical
Under the ADA, an applicant cannot be required to undergo a physical or mental examination prior to having received an offer of employment. The offer, however, may be conditioned on successful completion of a medical examination. In this regard, it is important to note that:
• All entering employees must be subjected to the examination;
• Information regarding the medical condition or history of the applicant must be maintained on separate forms and in separate files and treated as confidential; and
• The medical inquiries and examination do not have to be job-related and consistent with business necessity. However, if certain criteria in a medical exam are used to screen out candidates, the exclusionary criteria must be job-related and consistent with business necessity.
b. Medical Information Must Be Collected On A Separate
Form and Kept Confidential
Supervisors may be given information and instructions necessary to the person’s health and safety and may be informed of work restrictions and necessary accommodations. They may not and should not be given other medical information or access to such information.
9. Drug Testing of Job Applicants
Under the ADA, employers may prohibit the use of illegal drugs and alcohol in the workplace, may require that employees conform with the requirements of the Drug- Free Workplace Act of 1988, and may test for illegal drugs to the extent that such a test would otherwise be lawful. Although current illegal drug users and alcoholics who cannot safely perform their jobs are not protected by the Act, alcoholics and rehabilitated drug users, and those who are erroneously regarded as engaging in the use of illegal drugs, are protected.
10. Offers of Employment
Although the tone of the letter should be positive, the letter should avoid statements promising continued employment or any language that limits the employee’s at-will employment. The offer letter should expressly confirm that employment is atwill. In addition, the letter should contain no language that could mislead an employee to conclude that rights have been granted in his or her favor.
11. Compliance with Immigration Law
The Immigration Reform and Control Act of 1986 requires employers to inspect various documents from all new employees at the time of hire to verify their right to work in the U.S. Employers are also required to complete a “Form I-9.” The INS has developed a Handbook for Employers with instructions on completing the Form I-9.