Delaware Employment Law Blog

You may recall our previous post about a young lawyer who sued his former employer. The lawyer, Gregory Berry, had sent an email to the firm's partners, in which he stated, "it has become clear that I have as much experience and ability as an associate many years my senior, as much skill writing, and a superior legal mind to most I have met." Not surprisingly, Mr. Berry's arrogance was not well received, and he lost his job. He then sued his former employer, seeking over $75 million in damages.

Mr. Berry must have been stunned, then, when his lawsuit was dismissed earlier this week. The court dismissed the suit on the grounds that Mr. Berry had executed a valid release of his claims in exchange for a $27,000 severance payment. Consequently, his claims were barred. The court rejected Mr. Berry's argument that he signed the "unconscionable" agreement under economic duress.

But this story isn't over! In keeping with the self-aggrandizing attitude evident in Mr. Berry's email, he left the Courtroom before the Judge had finished issuing her ruling. She has now ordered the parties to attend a hearing on January 24, for purposes of considering a contempt ruling against Mr. Berry, reports Above the Law.

So what is the lesson to be learned for employers? Well, I suppose there's the idea that there's no way to guarantee you won't get sued. Despite the existence of a valid severance agreement and a substantial cash payent, the law firm still got hit with a lawsuit--and the aggravation and expense that goes with it. If there is a lesson here, it may be that you can never be too selective in your hiring decisions.

Philadelphia is the latest city to prohibit employers from asking job applicants to disclose their criminal history. The Fair Criminal Record Screening Standards (PDF) was signed by Mayor Nutter on April 13, 2011, and goes into effect on July 13. The purpose of the new law is to increase employment opportunities for candidates who have a criminal history by ensuring that the candidate will be “judged on his or her own merit during the submission of the application and at least until the completion of one interview.”

The ordinance applies to the City of Philadelphia and private employers with at least 10 employees operating in the City. It contains two key prohibitions. First, employers may not ask candidates to disclose (or otherwise consider) any arrest that did not result in a conviction. Second, employers may not ask about any criminal convictions during the application process or during an initial interview. After the first interview, employers may ask the candidate about the candidate’s criminal history—but not arrest history. The ordinance provides for a fine of up to $2,000 per violation.

Employers operating within the City of Philadelphia should revise their job applications to eliminate any questions regarding an applicant’s criminal history. Employers who are not subject to the Ordinance, though, also may want to consider limiting their reliance upon applicant’s criminal backgrounds during the hiring process. The EEOC “discourages” employers from considering a candidate’s arrest records. The EEOC published an informal discussion letter in 2008 on the use of conviction records in hiring. And a study by Carnegie Mellon showed that convictions older than 5 years were not indicative of future behavior.

This type of prohibition, also known as "ban-the-box" legislation, has been adopted by several states and cities around the country.  A similar restriction has been to prohibit or limit employers' consideration of a candidate's credit history as part of the hiring decision.  At last check, legislation was pending in approximately 16 states to prohibit employers from considering creditworthiness to varying degrees.  As the economic forecast continues to be grim and the number of unemployed remains high, it makes sense that state and local governments will continue to take legislative measures that impact the hiring process. 

Part 1 of this series addressed what employers should avoid when using Facebook or other social-networking sites to screen potential employees.  In Part 2, we looked at some of the steps employers should take to minimize the legal risks associated with this practice. In this final part of the series, we look at two more steps that employers should consider implementing into their best-practice routine.

Start Searching

Once your list is created, the rest is easy--but equally important. Designate an individual  who will perform the actual search (i.e., the "Searcher"). Here is the key: the Searcher must not be involved in the hiring decision. Human Resources can perform the search, for example. In smaller organizations without a dedicated HR staff, the manager of one department may be the Searcher when a different department is hiring, and vice versa.

Once the appropriate person is designated, the search may begin. If any of the items on the list are found, the Searcher documents them on the form and, preferably, prints or makes a copy (i.e., with the print screen feature) of the offending material. That information and only that information may then be turned over to the hiring manager for consideration.

The reason this step is so critical is that it effectively prevents the hiring manager from learning information that cannot be used in the hiring process--such as religion, sexual orientation, or other protected characteristic. This separation of knowledge can be a key component to defending against a failure-to-hire lawsuit.

Start Talking (Again)

In the event that a hiring manager is inclined not to hire a candidate as a result of what turned up during the online search, there are a few additional steps that should be taken. First, the hiring manager should present the candidate with the information. Identify the basis for concern and provide the candidate with a meaningful opportunity to explain. There is, after all, more than one John Smith registered with Facebook . And, since the Searcher has no interaction with the candidate, mistaken identity is not out of the realm of possibility.

Finally, make sure that everyone in the organization with any connection to the hiring process is aware of and understands the new practice. Make it clear to supervisors that they are not to search the Internet for information about a candidate prior to the decision to hire. Have supervisors acknowledge the policy in writing and review it periodically to ensure compliance.

The popularity of social-networking sites, such as Facebook and LinkedIn, has exploded in the last several years. Facebook boasts more than 600 million users. Facebook has become a treasure trove of information for anyone looking to discover the “truth” about an individual’s private life. Divorce attorneys report that Facebook is the single best online source for information to be used in divorce or custody proceeding. Law –enforcement agencies across the country turn to Facebook to locate suspects and gather evidence. And insurance investigator have put their telephoto lenses away—today they can find out all about a beneficiary’s activities from anywhere with an Internet connection.

So it only makes sense that employers, too, would want to put Facebook to work. More and more employers report that they’ve eliminated a candidate from consideration after viewing something negative in the candidate’s Facebook profile. But this practice does have legal risks. The good news, though, is that those risks can be avoided by following the steps discussed below.
What Not to Do

As an initial matter, employers should be aware of what they should not do when surfing the Web. First, do not ask anyone—including current employees and job applicants—for his Facebook password or other log-in credentials. The town of Bozeman, Montana instituted a policy that required applicants to turn over their passwords. Bloggers, tweeters, and Facebookers across the globe united in online protests and Bozeman quickly cancelled its policy. In February 2011, the Maryland Department of Corrections suspended a similar policy when the ACLU campaigned against it on its blog and on YouTube.

Second, do not try to gain access to a candidate’s profile indirectly. For example, don’t ask another employee, who is Facebook friends with the candidate, to show you the candidate’s profile. Last year, the New Jersey Supreme Court upheld a jury verdict against an employer for similar conduct, finding that such tactics constituted a breach of the employee’s privacy.

Third, do not send a Facebook friend request to the candidate without disclosing the real reason for the request. Similarly, do not instruct or permit anyone else to do the same on your behalf. If a candidate’s privacy settings prevent you from accessing his profile, the better idea is to tell the candidate in advance that you want him to accept your friend request but only for 24 or 48 hours. And be clear about what it is that you’ll be looking for once access is granted, as discussed in the following sections.

Stay tuned for Parts 2 and 3, when we’ll discuss best practices for using Facebook and other social-networking sites in the job-screening and hiring process.

Yesterday, I spoke to Delaware and Pennsylvania employers and HR professionals about documentation and record-retention issues. Two of the most popular topics were I-9 compliance and electronic or paperless recordkeeping. I mentioned to attendees a new publication that addresses both topics.

U.S. Citizenship and Immigration Services' new Handbook for Employers (pdf) is a document that anyone with I-9 responsibility should download.  The Handbook is a comprehensive 69-page guidebook to I-9 compliance. Among the many topics discussed in detail is electronic maintenance of I-9 files. 

Here's USCIS's answer to the question, "Can I throw away the paper I-9 once it's been scanned and saved electronically":

You may choose to fill out a paper Form I-9 and scan and upload the original signed form to retain it electronically. Once you have securely stored Form I-9 in electronic format, you may destroy the original paper Form I-9.

And what about if you want to adopt a completely paperless system with electronic, as opposed to traditional, signatures?  Here's what USCIS has to say on the issue:

If you complete Forms I-9 electronically using an electronic signature, your system for capturing electronic signatures must allow signatories to acknowledge that they read the attestation and attach the electronic signature to an electronically completed Form I-9. The system must also:

1. Affix the electronic signature at the time of the transaction;

2. Create and preserve a record verifying the identity of the person producing the signature; and

3. Upon request of the employee, provide a printed confirmation of the transaction to the person providing the signature.

Employers who complete Forms I-9 electronically must attest to the required information in Section 2 of Form I-9. The system used to capture the electronic signature should include a method to acknowledge that the attestation to be signed has been read by the signatory.

For employers and human-resource professionals who have been considering making the switch to a paperless or digital system for HR records, this guidance from USCIS should eliminate any concerns when it comes to I-9 compliance.

EEOC has filed a particularly newsworthy lawsuit against Kaplan Higher Education Corp.The suit is based on Kaplan's alleged consideration of candidates' credit histories during the hiring process.  EEOC takes the position (and has, for quite some time), that employers may be engaging in unlawful employment discrimination by using a candidate's credit history when deciding who to hire. EEOC contends that this practice, in which many employers engage regularly, has an unlawful discriminatory impact based on race and is neither job-related nor justified by business necessity.  In short, EEOC alleges that employers, including Kaplan, are disproportionately disqualifying black candidates due to credit ratings.

Although I understand that there is a comfort to employers in using credit histories to screen clients, comfortable isn't always the most desirable outcome.  When an employer asks me about whether to rule out a candidate based on the candidate's credit history, I usually suggest that it's very possible that a top performing employee can be so focused on being a top performer that their personal lives are left unattended. In other words, you can imagine an employee whose personal credit is less than perfect because they're too focused on work--not the worst employee that I can imagine, by far.

Another scenario is an employee who goes through a difficult divorce, which results in a poor credit rating.  Or, alternatively, if the employee has had a serious family illness.  This, also, can lead to financial difficulty and, in turn, to a less-than-stellar credit rating. 

Of course, none of these scenarios are connected by race or ethnicity.  Thus, I can't say that I am particularly compelled by EEOC's position in the Kaplan case. But neither am I compelled by a credit score--especially not in a difficult economy or in any economy when looking for the best possible employee for the job.

One final note.  Illinois recently passed a law prohibiting employers from disqualifying candidates based on credit history.  The law takes effect on January 1, 2011.  Hawaii, Oregon, and Washington have similar laws.  And, as of late summer, 2010, similar bills were pending in 15 states.  So it seems indisputable that the practice is becoming more and more disfavored.

Other Resources:

Washington Post article re: EEOC v. Kaplan

EEOC Press Release

The credit history of a job candidate will be off limits to Illinois employers as of January 1, 2011.  Illinois Governor Pat Quinn signed the bill into law on Tuesday, thereby prohibiting employers from making employment decisions--including the decision whether to hire--based on the individual's credit history.  (See Press Release).

Hawaii, Oregon, and Washington already have similar laws.  And bills are pending in 16 state legislatures that would enact similar prohibitions.  The recent push is likely related to the high unemployment rate--more candidates inevitably will have credit issues as a result of unemployment. Therefore, there are more voices to speak out against employers' use of credit histories for employment decisions. 

Job candidates are often unaware of the importance of their resumes. It surprises me, really, how little attention seems to be paid to not just the content of resumes but the appearance of resumes.  When I encounter a beautiful resume, I take notice.  And if I interview a candidate with a flawless resume, I'll ask the candidate how they went about creating it.  Did they have it reviewed by a teacher or career services?  A candidate who responds that she sought advice of multiple people, in academics and in the professional world scores very well.  It tells me that she's passionate about the way she presents herself and takes great pains to get the details just right.

So you can understand my dismay when I read a question from a reader sent in to the excellent blog, Ask a Manager.  The reader asked whether the font used on a resume really matters.  And, specifically, whether a resume created using the font Comic Sans can ever really be taken seriously. This is an example of Comic Sans.

The answer, in short, is "no."  Comic Sans was a font created by Vincent Connare for Microsoft in 1994. The font was intended to be used in the Microsoft Bob program, which was intended for children.

Despite Connare's insistence that the font was not designed as a typeface, it's been used as one ever since its release--much to the dismay of typography enthusiasts.   Comic Sans is a font that says frivolity, light-heartedness, and playfulness. Comic Sans does not say professional, serious, or knowledgeable.  So, unless  you're applying for a job at a day-care center, please, please, respect your document and skip the kiddie fonts.  To learn what you should do with your resume, check out Typography for Lawyers, where Matthew Butterick puts out some terrific posts on this very topic.

(Need more proof that Comic Sans is no laughing matter?  Check out the Ban Comic Sans website.  There's an entire movement devoted to eradicating the professional world of this silliness.)

Legal Writing Prof Blog says that it may and it may not. I agree in theory.  In reality, though, I must respectfully disagree.  The answer to the question posed in the title is "Yes." 

I've seen it happen too many times to count.  A candidate makes it past the initial screening process but is eliminated during the first-round interviews, not because of anything that goes on in the actual interview.  Instead, the hiring manager spots a typo in the candidate's cover letter or resume and makes the decision not to hire her before the interview even begins.

Do I agree with this method of elimination?  Well, it depends.  If the candidate pool is entry-level college graduates, I tend to be a lot more forgiving. My experience has been that undergraduate students and recent graduates have not been taught the make-or-break nature of proofreading.  As a result, I tend not to make an elimination decision based on a single typo.

Now, when it comes to law students, it's a different story.  I don't expect law students to have perfect proofreading skills. But, what I do expect, is for them to take advantage of the resources available to them.  Law schools provide any number of resources to their students for this purpose, including career-center services and even resume-review services. My alma matter has a whole day devoted to resume reviews, when students can stop in to have their resume reviewed by practicing lawyers and professors alike.  I've been asked by a number of job-seeking students to critique their resumes.  In short, a resourceful student with the foresight to plan ahead and the initiative to be creative enough to find a sufficiently broad pool of potential reviewers, will not have a single typo in any document they provide to a potential employer.*

I also must take issue with the statement that a student with an outrageously good resume can escape the negative effect of a flawed resume. If a resume is brimming with very prestigious credentials but contains a typo, the typo doesn't get overlooked.  Instead, the overlooked mistake indicates that the candidate, who otherwise appears brilliantly qualified, must not be interested enough in the position to put those qualifications to work. A mistake by someone who doesn't know any better is, to me, less of a turn off than carelessness by someone who does.  Carelessness is a sign that the candidate must not want the job, after all. 

The United States Immigration and Citizenship Service (USCIS), posted this item on Friday:

USCIS Reminds all U.S. Employers of Requirements to Use Revised Form I-9, Employment Eligibility Verification

The revised Form I-9, Employment Eligibility Verification (Rev. 02/02/09), goes into effect today for all U.S. employers. The revision date is printed on the lower right-hand corner of the form.

The interim final rule, published December 17, 2008, in the Federal Register, revised the list of documents acceptable for the Employment Eligibility Verification (Form I-9) process. Employers may no longer use previous versions of the Form I-9.

The revised list improves the security and effectiveness of the Form I-9 process. The list specifies that expired documents are no longer acceptable forms of identification or employment authorization. Allowing for expired documents makes it more difficult for employers to verify an employee’s identity and employment authorization and compromises the Form I-9 process.

***

If you haven't already, employers should download the new I-9 form today for immediate use.

Job applicants today face a tough market.  There can be no doubt about it.  And law students are no exception. Graduating at the top of one’s class from a top law school no longer guarantees an interview, much less an eventual job offer. Upon racking up a number of rejection letters noting his “impressive background” (or something similar), one law student decided to take a new approach to his cover letter.

The entire letter is posted at Above the Law and is worth reading.

The letter recounts the writer’s top 15 percent law school rank and law journal experience, but goes on to offer “an outside perspective”—the opinions of nine law firms, offered in a variety of permutations, that the job applicant has an “impressive” background.

Lawyers at one firm, for example, were "most impressed" with the writer’s resumé. Another firm “remarkably” came to the identical conclusion that that the applicants’ "qualifications are impressive."

"Clearly, there is a consensus among many firms that I am ‘impressive,’ ” the cover letter posted on the blog says. “Although there is some disagreement about whether my background, credentials, qualifications, resumé, or a combination of these is impressive, it is obvious that I am impressive on some level. Furthermore, while these accolades were all included in rejection letters, the opinions still hold true and are strong measures of my value as a candidate in your colleagues' and competitors' eyes. Thus, I am undoubtedly qualified for a position in your litigation department."

“Finally, if I do not receive an offer for employment, many firms will be quite disappointed. Dozens of firms have indicated a desire for my ‘success’ in the ‘future’ with a ‘challenging’ or ‘rewarding’ position ‘somewhere else,’ and I do not intend to upset these firms by failing."

Unfortunately, the creative approach did not pan out for this law student – he states that the firm receiving this letter rejected him within three days.

Recruiting and training programs, to be truly successful, must have a clear purpose with well-defined objectives.  This is very difficult to do.  In the book Change to Strange, author Daniel M. Cable writes about just how difficult it can be to define your organization's true priorities, the ones that you will be fanatical about in the execution of the organization's business, and then building your workforce architecture around that "strange" picture. 

For an example of the lessons taught in Change to Strange, have a look at this speech by Randy Nelson, dean of Pixar University, the company's recruiting and training arm.  Mr. Nelson is inspiring, to say the least.  From his presentation, it's clear to me that Pixar "gets it."  As in, really gets it.  I am very impressed. 

[The video is made available by Edutopia.org, which Fast Company posted about early in the month.]

The video is about 10 minutes long (worth every second of your time).   As Fast Company describes the HR theory Nelson advocates:

Mostly, it's about hiring ultra-nerds with good communication skills. To wit: You want people who have become exceptional at a tiny discipline, no matter how obscure or dorky, since it's that compulsion to truly master something that predicts how they'll handle a new task. (Wannabe Pixar employees: Don't bury your unicycle or juggling skills on your resume.) Another idea is looking for people who have failed and overcome—as Nelson puts it, "The core skill of innovators is error recovery not failure avoidance," which is key if you're asking someone to solve a never-before-solved problem. But perhaps the squishiest trait is the ability to make others around you better, through communication and camaraderie.

This, I believe, is the HR Gold Standard in action.

Employers were mandated to use a revised I-9 form, beginning on February 1, 2009, per the order of the the United States Citizenship and Immigration Service (USCIS).  The I-9 form is the form used to verify an employee’s eligibility to work in the U.S.  

USCIS has changed its mind, and has decided to delay implementation of the new I-9 form to allow time to evaluate whether it is the best approach to take. The new effective date will be April 3, 2009. USCIS has also reopened the public comment period for thirty days, so if you have an opinion about the proposed new form that you’d like USCIS to consider, you have until March 4, 2009 to do so.

U.S. Citizenship & Immigration Services (USCIS), will issue a revised I-9 Employment Eligibility Verification Form.  Employers must use the new form on February 1, 2009.  USCIS issued an Interim Final Rule describing what documents can be used as proof of identity and authorization to work in the United States.

The biggest change under the new rule is the new prohibition on accepting expired documents.  Expired documents will no longer be acceptable proof of the right to work. This means that U.S. Passports and List B identity documents, such as driver’s licenses, may not be used for employment verification purposes if they have expired. In the Interim Rule, the USCIS explains that this measure will help prevent the use of counterfeit documents since current documents are more likely to include security features and up-to-date photographs.

The revised form will also include changes in references to various immigration documents (I-551, I-688, I-688A, I-688B, I-766, I-94, I-94A) to conform to current Department of State and USCIS practices with regard to those documents. There will be two new acceptable List A documents: (1) a machine-readable immigrant visa with a temporary I-551 printed notation, and (2) A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

The new form and a revised version of the instruction book for completing the form will be available on the USCIS website by February 1. Employers must use the new form for all new employees and for reverification of current employees beginning on that date. The draft of the new form is attached to the Interim Rule.

Job applicants lie on their resumes.  They lie a lot.  Some estimates say that as many as 62% of resumes contain embellished education and employment histories.  This is why, as we've posted before, employers must screen applicants.  One recent example of an employee caught with his hand in the cookie jar, so to speak, is Robert Irvine.  The popular host of the Food Network show, "Dinner: Impossible," admitted that he had spiced up his resume when it was discovered that he had not cooked for the Royal Family as he'd represented during the application process.  He was released from his contract and a substitute was hired for the rest of the season. 

Apparently, though, his cooking and his charm were enough to warrant the forgiveness of the TV network.  Irvine is set to return to "Dinner: Impossible" this season.  He's said to be coming back for six new episodes, which will tape in December and January and air in March.  His previous and soon-to-be employer had the following to say about its forgive-and-forget attitude to the resume indiscretion:

[Irvine] has taken responsibility and made a conscious effort to clear the air, rebuild the relationship with Food Network and apologized for the earlier inaccuracies.

Would you be so forgiving?  Would it matter whether the employee was a well-loved celebrity of sorts with big money-making potential?