Articles Posted in Hiring

Investigating complaints of inappropriate workplace conduct is a difficult challenge for any number of reasons. But conducting an immediate and thorough investigation is critical to both preventing lawsuits and to avoiding liability should a lawsuit arise. Human-resource professionals often ask for tips in handling this challenge. Here are three. male female sign

First, don’t be shy. An investigation of workplace harassment is not the time to be timid. Ask the tough questions and be direct. Don’t mince words or dance around the questions. Consider writing out the questions that you need answers to and actually check them off your list. If you don’t ask a straight question, you’ll never get a straight answer.

Second, don’t decide anything in advance. This is important because, if you’ve already made your mind up before you ask the question, you’ve already failed as an investigator. In order to get the information that you need, you must truly listen. And the interviewee will know if you’re not listening. So keep an open mind and don’t jump to conclusions.

Third, remember that there may be more than one version of the “truth.” It’s rare that I am presented with a complaining witness who I think is actually “lying.” It’s far, far more common that the complainant misunderstood the events or misinterpreted the meaning. And, frequently, for one reason or another, the complainant has repeated the story so many times in his or head that the story has become the truth. In other words, the complainant truly believes that the events occurred the way that he or she is describing them.

There is a tremendous body of social-science research about this third item. Eye-witness accounts can be, well, dead wrong. If you think you’re the exception, or, if you just want to see how differently people can see the same event, you may want to take a look at the “selective attention test” by Daniel Simons and Christopher Chabris.  Watch the video and see how many passes you count and then compare your answer to others . . . and then consider how certain you should be about the observations of the employees you’re interviewing.

Criminal histories and credit scores will soon be an off-limit topic for job applications in Delaware’s public sector.  HB 167 passed the Delaware Senate on May 1, 2014, and is expected to be signed into law by Gov. Markell soon.  Criminal Background Checks

As we previously reported, the bill would prohibit public employers and contractors with State agencies from:

inquiring into or considering the criminal record, criminal history, or credit history or score of an applicant before it makes a conditional offer to the applicant.

Once a conditional offer of employment has been made, the employer may perform a background check but, even then, 

may only consider felonies for 10 years from the completion of the sentence, and misdemeanors for 5 years from the completion of the sentence.

The bill would also require employers to “several enumerated factors” (i.e., the EEOC’s factors) when deciding whether to revoke a conditional offer based on the results of a background check.

The scope of the bill is broader than you may suspect.  It would apply not only to public employers (i.e., State government), but also to “contractors with State agencies.”  It does, however, provide for an exception for contractors who are subject to conflicting State or federal laws.  For example, a child-care facility that contracts with the State would not be subject to the new law because it is obligated by other State laws to comply with certain background-screening requirements. 

The trend towards prohibiting employers from inquiring into an applicant’s criminal history or credit score does not appear to be going away any time soon.  Although, for now, only public employers in Delaware will be subject to this ban-the-box law, it may be just a matter of time before the scope is expanded to include private-sector employers, as well. 

See also

Bill Would Limit Use of Criminal Histories for Delaware Employers

Wilmington Joins the Ban-the-Box Bandwagon

Other posts on criminal-history checks for potential employees

So-called “ban-the-box” initiatives, which limit employers’ inquiries into an applicant’s criminal history, have been adopted by several cities and municipalities.  Philadelphia adopted such a law in the Spring of 2011.  The City of Wilmington joined the ban-the-box bandwagon in Fall 2012, when then-Mayor Baker signed an executive order that removed a question about criminal convictions from job applications.  But that executive order applied only to applicants seeking work with the City of Wilmington.  Other Delaware employers have not been subject to these restrictions.

A bill is pending in the Delaware legislature, though, would change that and more if passed.

H.B. 167 proposes to limit when public employers and government contractors may inquire about or consider the criminal background or credit history.   The employer would not be permitted to ask about this information until “after it has determined that the applicant is otherwise qualified and has conditionally offered the applicant the position.”  Thus, a covered employer would be prohibited from asking about criminal or credit history until at least the first interview-no more checkboxes on job application.

The bill also proposes to limit the specific types of information that can be requested. Covered employers would be permitted to ask only about: (a) felony convictions in the past 10 years; and (b) misdemeanor convictions in the past 5 years.

This means that questions about arrests would be totally off limits-both on applications and in in-person interviews.

Finally, the bill proposes to limit how the information that the employer obtains will impact the hiring decision.  The bill basically adopts a scaled-down version of the EEOC’s multi-factor analysis whereby employers would be required to consider the nature of the crime and its relationship to the position sought, how much time has passed, etc. 

Oddly, the bill offers no specific limits on the use of credit history information other than timing.  In other words, the bill prohibits covered employers from obtaining a credit report for the candidate until a conditional offer has been made.

Even for private-sector employers who do no business with the State or any State agency, the use of background checks as part of the screening process continues to warrant consideration.  Particularly since the laws around the country are still developing, employers should weigh the benefits of this checks against the risks.  (See 5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit).  And, if nothing else, employers should evaluate the process and policies in place for conducting such checks.

Do employers search social-media sites, like Facebook and Twitter, before hiring a potential employee?  Yes.  Like it or not, they do.  Sometimes as part of an official screening process but, more often than not, the act of Googling is simply second nature and is done without any advance planning or thought. Cold weather woes

And, as a result of these online searches, do employers screen out candidates for unlawful reasons, such as race, religion, or pregnancy?  Yes, says the results of a recent survey reported by the Wall Street Journal

According to the study, as many of one-third of employers search for a job applicant’s online activity early in the hiring process.  The survey also claims that candidates whose public Facebook profiles indicated that they were Muslim were less likely to be called for interviews than Christian applicants. 

Perhaps it’s because the weather has turned cold in the Northeast and it’s put me in a cantankerous mood, but I take issue with the implications of these results. 

First, if a hiring manager has a bias, either consciously or subconsciously, against a particular class of candidates, he is no more likely to act on that bias merely because he learns that an applicant falls into the class via Facebook.  There are numerous studies that show that a candidate’s surname can impact whether he is called for an interview. 

Second, this discriminatory screening happens only if a candidate’s online information can be seen by the hiring manager.  The most recent data of which I am aware says that less than 25% of Facebook users maintain a public profile.  Good digital citizens who are seeking employment know not to keep their Facebook page public for all to see. 

Third, the WSJ article concludes with a quote from an employment lawyer, who reports that he “advise[s] employers that it’s not a good idea to use social media as a screening tool.”  Well, I’ve been saying it since 2005 and I’ll continue to say it now, hogwash.  The hiring decision should be made with great care. Internet searches for applicant information can be excellent tools, provided they are conducted in a legally defensible manner.  

Moreover, employers should not deny the reality that their hiring managers are searching online for information about a potential candidate.  Instead of turning a blind eye to this reality, employers are best advised to address it by implementing best practices to prevent unlawful discrimination, while still ensuring the best possible hiring decisions. 

See also, Screening Job Applicants with Facebook: Parts 1, 2, and 3

The EEOC suffered another defeat this week, being ordered again to pay the fees and costs incurred by an employer after the EEOC’s claims turned out to be without merit.  IN EEOC v. Peoplemark, Inc., A split 6th Circuit affirmed an award of approximately $750,000 in fees and costs incurred by a temp agency in defending against one of the EEOC’s criminal-history cases.  The EEOC contended that the temp agency’s company-wide policy barring employment to individuals with felony records had a disparate impact on Black candidates. Attorney's fees

The temp agency, PeopleMark, had offices in five states.  In 2005, a Black candidate, Sherri Scott filed a Charge of Discrimination, alleging that she had been denied employment because she had a felony conviction.  In fact, Scott had two felony convictions and had been released from prison less than a month before she applied for a job with PeopleMark. 

And it gets worse. 

The EEOC “investigated” the Charge, issuing multiple subpoenas and obtaining more than 15,000 pages of documents.  Although the evidence did not seem to support the allegations in the Charge, EEOC disagreed and filed suit.  The suit, asserted on a class of individuals, alleged that the company’s policy prohibited the hiring “of any person with a criminal record,” which disparately impacted Black applicants.

The trouble, though, was that PeopleMark did not have such a policy. Then the EEOC identified approximately 250 individuals it contended to be within the class of aggrieved persons.  Well, as it turned out, PeopleMark had hired 57 of the individuals and some others did not have a criminal background in the first place.

The EEOC eventually agreed to dismiss the case but, as you may imagine, PeopleMark was not exactly satisfied and it sought sanctions in the form of fees and costs incurred in the litigation in the amount of approximately $1.3 million. 

In March 2011, the U.S. District Court for the Western District of Michigan granted the motion and awarded approximately $750,000 in fees to PeopleMark.  On appeal, the 6th Cir. affirmed, finding that the employer was entitled to recover fees from the time that the EEOC learned or should have learned that PeopleMark did not have the policy as the EEOC had alleged.

EEOC v. Peoplemark, Inc., No. 11-2582 (6th Cir. Oct. 7, 2013).

See also

EEOC Faces Petition for $5.5m in Fees

W.D. Pa. Finds EEOC Failed to Conciliate

What Does “Good Faith” Mean to the EEOC?

When the EEOC Goes Too Far-Part 2

When the EEOC Goes Too Far

EEOC v. Ruby Tuesday

Anthony Weiner is in the headlines again. Last week, he told reporters that, since he left Congress in 2011, he’s sent salacious messages to numerous women, according to the NY Daily News. This latest revelation has caused quite the stir but Weiner says that he’ll stay in the race for Mayor of New York City.

The dialogue about whether Weiner should withdraw from the race is an interesting one. The conversation seems to focus on the nature of his “mistakes” and whether or not the public should care about the sexual endeavors of elected officials. Some say that private matters and personal affairs should not serve as qualifications for public office. But I think this argument mostly misses the point.

When making a hiring decision, good employers know that what matters is the candidate’s ability to perform the essential functions of the job. For example, an applicant’s race, religion, gender, disability, etc., should play no part in the decision because none of those characteristics have any relationship to the duties. If it doesn’t indicate the ability to perform the job, it shouldn’t matter.

So, how does this apply do Anthony Weiner? Well, many of his defenders argue that his sexual escapades are not indicative of his ability to perform the duties of mayor. And this may well be true.

But think of it like this. Weiner got into trouble the first time around because of certain conduct. He stepped away from the political spotlight but returned shortly thereafter, asking for forgiveness for his indiscretions. He told the voting public that he had recognized that his conduct was wrong and, at least implicitly, that he wouldn’t engage in the conduct again.

From an employment-law perspective, the nature of the conduct is irrelevant. What is relevant is that Weiner didn’t keep his promise to refrain from engaging in the conduct. It’s his apparent inability to learn from his mistakes, and the failure to keep his promise, that reflect on his suitability for the job-not the nature of the conduct itself.

“Give Me Some Credit!” Maybe that’s how the EEOC feels these days, after its high-profile suit against Kaplan Higher Education Corp. was dismissed on January 28, 2013. As readers may remember, the EEOC sued Kaplan in 2010, alleging that its pre-employment credit check policies had a disparate impact upon Black job applicants.

In a 23-page opinion, the U.S. District Court for the Northern District of Ohio dismissed the suit on Kaplan’s Motion for Summary Judgment. The Court first excluded the expert witness testimony offered by the EEOC, holding that it was scientifically unsound. Expert witness testimony is key in disparate impact cases, because they rise and fall on the percentage of job applicants from a given classification as compared to the percentage of hires in the same classification. Among the key problems for the EEOC was that Kaplan, like many employers, does not collect demographic information on the race of job applicants. As a result, EEOC struggled to identify the races of those applicants that were rejected due to credit problems. In an effort to remedy the problem, the EEOC subpoenaed records from state DMVs, and used a team of “race raters” to review the DMV photos and assign races to the job applicants. The Court, not surprisingly, rejected this approach and the resulting expert witness analysis.

Next the Court addressed Kaplan’s Motion for Summary Judgment. In the absence of any statistical evidence demonstrating an adverse impact caused by the use of credit checks, the Court held that the EEOC’s case had to be dismissed.

There are several interesting considerations arising out of this litigation. First, as the Court’s decision noted, the EEOC itself uses credit checks to vet job applicants! This should not come as a great surprise, as many employers use credit checks as one of a litany of tools at their disposal to identify the best-qualified candidates. Nonetheless, for an agency that has widely publicized the pitfalls of background checks in the hiring process, its adoption of the practice calls its hardline stance into question.

Second, the EEOC’s past enforcement practices gave rise to many of its difficulties in this case. Many employment law attorneys discourage their clients from collecting race, gender, and other protected-characteristic data during the application process. In the past, the EEOC has used such information to support disparate hiring claims. Kaplan, in complying with EEOC best practices, deprived the EEOC of information that it needed to prove its case, thereby leading to the rejected “race rater” approach.

Finally, many employment law experts and EEOC-watchers are wondering if the Court’s decision will put a damper on EEOC enforcement efforts directed at background checks. As readers of this blog know, background checks have been in the EEOC’s cross-hairs for quite some time, with new guidance issued on the use of criminal background checks in April 2012. In light of the hurdles faced in this case, many are speculating that the EEOC may back off of its efforts to litigate these issues, focusing instead on conciliation efforts.

Only time will tell. In the meantime, employers can rejoice in a victory for the reasoned and supportable use of pre-employment credit checks.

Employers’ Ban-the-Box initiatives are taking hold in many states and municipalities. The City of Wilmington has joined the ranks of employers no longer requiring information on an applicant’s criminal history at the time of job application. Mayor Baker signed an executive order on Monday that removes a question about criminal convictions from city job applications.

criminal background.jpg

According to Mayor Baker, the city will now conduct criminal background checks only on applicants who have received a conditional job offer. Public safety jobs in the police and fire departments are the only positions excluded from the order.

Mayor Baker’s initiative is a good idea for many reasons. According to the article, nearly one in four job applicants has some kind of criminal past. That is a significant portion of the population who could be automatically denied employment, and deprived of the opportunity to be a productive member of society, by employers taking an inflexible position on criminal background. Moreover, the practice of not hiring applicants with a criminal record disproportionately affects certain segments of the population: predominantly Hispanics and blacks. Because of this adverse impact, the EEOC has taken a particular interest in this practice.

In order to exclude applicants based on a criminal record and successfully defend an EEOC inquiry, the employer must prove that the exclusion was “job-related and consistent with business necessity.” In other words, the employer should be able to articulate its logic if it denies employment to an applicant based on criminal history. For example an employer hiring a cashier position who learns that an applicant embezzled from a prior employer five years ago passes the smell test for exclusion. On the other hand, it is much harder to justify excluding an applicant who is going to load pallets in the warehouse, because he wrote a bad check once. The severity of the crime, its relationship to the job, how long ago it was committed, are all factors that should be considered with each decision.

In April of last year, the EEOC issued an Enforcement Guidance on the Consideration of Arrest and Conviction Records. The Guidance laid out the statistical case for a heightened scrutiny of criminal background checks. While it does not outright ban asking about criminal history on a job application, it does strongly discourage the practice, and recommends that the employer wait as late as in the hiring process as possible to request this information. By waiting until an employee has been extended a conditional offer of employment, the City of Wilmington has done just what the EEOC advises.

Previous posts on criminal-history checks for potential employees.

Is an employee who is in the country illegally a covered “employee” under the Workers’ Compensation laws? That was the question of first impression presented to the Delaware Superior Court in Del. Valley Field Servs. v. Ramirez, (PDF) No. 12A-01-007-JOH (Sep. 13, 2012). The court concluded that the answer is “yes,” and ordered that the former employee, who has since been deported to Honduras, is eligible to receive benefits under Delaware’s workers-compensation statute.

Facts
The employee, Saul Melgar Ramirez, was hired in April 2010 as an “independent contractor'”–which the term the court uses to say that Ramirez was paid in cash. In January 2011, he was converted to a regular employee and added to the payroll. When told by his boss that he would need a Social Security number for his I-9 documentation, Ramirez bought a fake SSN card for $180. In February, the payroll service informed the employer that the number was false. Ramirez was deported in March.

In late January, shortly after he was converted to employee status, Ramirez fell down six steps and landed on his back. The company’s president, who witnessed the fall, reported the accident to the company’s workers’ compensation carrier and made arrangements for Ramirez to get medical treatment. The treating physician determined that Ramirez was totally disabled.

Issues
The Industrial Board awarded benefits to Ramirez. (See Cassandra Robert’s cleverly named post about the Board’s decision, The Dearly Deported–Illegal Alien Status Does Not Work a Forfeiture in Delaware). The employer appealed to the Delaware Superior Court, where it made several arguments, including:

  • the employee’s “fraudulent inducement” in obtaining the job disqualified him from receiving benefits;
  • because, pursuant to the federal immigration laws, Ramirez could not be lawfully hired, those laws preempted the State’s workers’ compensation laws; and
  • the employee’s exclusion from the U.S. was the equivalent of being incarcerated, which would result in the suspension of benefits.

Judge Herlihy rejected each of the three arguments in turn and concluded that, despite his status as an illegal alien at the time of his employment, Ramirez was not disqualified from receiving workers’ compensation benefits.

Nuts and Bolts
Regular readers may be mildly surprised to read that I actually side with the employee in this case. Not so much because of complicated legal reasons but more because of the basic facts. The employer hired Ramirez. The basic employment relationship involves the performance of services by the employee and the provision of certain compensation and benefits by the employer in return. One of those benefits is workers’ compensation insurance.

Here, there is no dispute that Ramirez performed the services for which he was hired. Thus, the employer received the bargained-for benefit of the employment relationship. Ramirez, in return, was entitled to receive, in exchange, the benefits for which he had bargained, including wages for work performed and workers’ compensation insurance.

There is no dispute that Ramirez was injured during the course and scope of his employment and there appears to be no dispute as to the extent of his injuries. Thus, it seems fair to me that he receive the benefits of the employment relationship, just as his employer did.

Feel free to disagree with me–I’m open to different opinions. Sean O’Sullivan reported the case in an excellent article in the News Journal today and notes that the case has been appealed to the Delaware Supreme Court. So we’ll keep you posted.

Some people are real jerks. Anyone who deals with the general public for a living knows that this is an indisputable fact. For those who work in sales or service positions know that the theory “the customer is always right” can be a bitter pill to swallow. Every waiter, store clerk, and receptionist has had a moment where they had to swallow very hard to resist firing back at an irate and/or irrational customer who’s decided to take out his or her frustrations on whoever happens to be in their line of vision. Most of the time, it is not possible or not wise to fight back.

But, sometimes, it is.

Take, for example, Jennifer Livingston, a TV news anchor in LaCrosse, Wisconsin. A viewer with, apparently, way too much time on his hands, took it upon himself to write Ms. Livingston a note to express his displeasure with her weight. “Obesity is one of the worst choices a person can make and one of the most dangerous habits to maintain,” wrote the viewer. “I leave you this note hoping that you’ll reconsider your responsibility as a local public personality to present and promote a healthy lifestyle.”

I think it’s fair to say that Ms. Livingston didn’t find the viewer’s “concern” all that heartwarming. Heck, it may have even hurt her feelings. But, instead of hiding her pain, she elected to take a different approach and responded to the comments on the air. Her response took the form of an articulate call to arms in which she accused the viewer of being a bully.

I think the story is inspiring for a number of reasons but it also highlights a few different current issues in employment law.

First, there’s the continuing discussion surrounding bullies in the workplace or, as I like to call them, “jerks at work.” Legislation has been introduced in numerous states over the past five or so years that would, in short, make it unlawful to be a jerk at work. I think there are obvious problems with trying to legislate “jerkiness” but I also recognize the high costs that jerks can have on workforce morale, creativity, and overall productivity. This post at Above the Law provides a recent summary of the various legislative efforts.

Second, there’s the as-yet-unresolved question of whether obesity is a disability under the Americans With Disabilities Act (ADA). Historically, courts have been unwilling to include obesity as a protected disability. With this precedent in mind, some employers have refused to hire applicants who are obese and charge higher health-care premiums for overweight employees. But the EEOC has said that the ADA does protect individuals who are morbidly obese. A case filed last year by the EEOC asserting that “severe” obesity was a protected disability under the ADA, recently resulted in a $55,000 settlement for the employee. And a recent decision by the Montana Supreme Court seems to further support that the trend has shifted towards protecting obesity as a disability.

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