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TRANSCRIPT
Avoid the Applicant
Ambush:
Mastering the Legalities
of the Pre-Hire Process
2017 PHRA Employment Law Day
Mario R. Bordogna, Esquire
Clark Hill, PLC
@EmpLawCounsel
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ROADMAP
1) HIRING GOALS
2) ADVERTISEMENTS AND APPLICATIONS
3) INTERVIEWING
4) PRE-OFFER CONSIDERATIONS
5) BACKGROUND CHECKS
6) SOCIAL MEDIA
7) MAKING OFFERS
8) FINAL THOUGHTS
HIRING GOALS
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HIRING GOALS
Identify, recruit and retain quality
employees
Avoid liability to candidates not hired
Avoid negligent hiring claims
Avoid getting more than you bargained
for
ADVERTISEMENTS &
APPLICATIONS
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ADVERTISEMENTS
Forms vary, but key legal elements are:
EEO statement
No mention of gender, age, religion, etc.
Avoid ‘recent graduate
BFOQ
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APPLICATIONS
Things your application MUST say:
At-will employment
EEO employer
Application is no contract or offer
Falsification/omissions may lead to
dismissal/refusal to hire
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APPLICATIONS
Things your application MAY say:
Education
Work History
References
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APPLICATIONS
Things your application CANNOT say:
Include a photograph
Requesting age, race, disability info, etc.
Are you married/do you have children?
Are you in the military?
Are you pregnant/do you plan a family?
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APPLICATIONS
Things your application CANNOT say:
Do you have a medical condition?
When did you attend school?
Are you using prescription medication?
Are you receiving medical treatment?
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APPLICATIONS
Things your application CANNOT say:
What’s your citizenship?
Have you been arrested before?
Do you have a religious affiliation?
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APPLICATIONS
Ban-The-Box
Have you ever been convicted of a crime?
2012 EEOC guidance on disparate impact
Blanket rules, relatedness, and
temporal connection
Opportunity for rebuttal?
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APPLICATIONS
Ban-The-Box
Awareness of state/local bans
PA Criminal History Record Info Act
PA State HR ‘Fair Chance Hiring
policy’ for non-civil service jobs
under governor jurisdiction
Pittsburgh (City employment)
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APPLICATIONS
Ban-The-Box
All about timing
Removal from application?
Defer inquiry to post-offer?
Picking your poison?
INTERVIEWING
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INTERVIEWS
The process
Focus on the job applied for
Volunteering prohibited information
Avoid small talk
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INTERVIEWS
Accommodations
For the interview
For the job itself
EEOC v. Abercrombie
Religion/disability
When the candidate opens the door
PRE-OFFER
CONSIDERATIONS
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PRE-OFFER CONSIDERATIONS
Questions
disability related questions/exams
Performing specific job functions
Demonstrations
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PRE-OFFER CONSIDERATIONS
Questions
Meeting attendance requirements
Current illegal drug use v. past
use/prescription use
Workers’ compensation history
BACKGROUND CHECKS
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BACKGROUND CHECKS
Importance
SHRM: Employers suffer $4 billion in
embezzlement losses annually
Avg workplace violence lawsuit award in
excess of $1 million
SHRM: Almost 50% of resumes contain
material fabrications on experience,
education, qualifications, etc.
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BACKGROUND CHECKS
FCRA: An Introduction
Enforced by the FTC
Applies to use of ‘consumer records’
from ‘consumer reporting agencies’
Driver record, investigative report
Any info bearing on character or
reputation used in establishing
employment eligibility
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BACKGROUND CHECKS
FCRA: The Substance
Written notice to applicant that you may
use consumer records in assessing them
Independent, written authorization to do
so required
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BACKGROUND CHECKS
FCRA: The Substance
Pre-Adverse Action Disclosure
Written notice with record/summary
of rights in advance of denying
candidacy
Adverse Action Disclosure
Written notice of decision, who
provided record, & how to dispute
with that agency
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BACKGROUND CHECKS
FCRA: The Danger
No-fault statute
Violations often systemic
Class/collective actions
Available damages include punitives
and attorney fees
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BACKGROUND CHECKS
FCRA: It Gets Worse
Expanding definitions of “consumer
reporting agency” and “consumer
report”
App inclusion
Companies which compile information
and require account membership/log
in for access
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BACKGROUND CHECKS
A note about using third parties
Insurance and indemnification
Require adherence to all privacy laws
Remind them that you forbid
discrimination in hiring
Include in Contract!
SOCIAL MEDIA
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SOCIAL MEDIA
Should you use it in hiring?
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SOCIAL MEDIA
Things to keep in mind
Remember what youDON’Twant to know
Consistency
Use a third person/party
Guidelines
Sources and type of info
Relation and explanation
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SOCIAL MEDIA
Timing is everything
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SOCIAL MEDIA
One more thing
Varying state laws prohibit employer
access of social media log-in information
PA isn’t one, but…
Is it really a good idea anyway?
MAKING OFFERS
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MAKING OFFERS
Conditionality
After conditional offer, employers may:
Ask disability-related questions or
require medical examinations
Ask about WC history, BUT…
Ask if reasonable accommodation
needed to perform essential job
functions, BUT…
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MAKING OFFERS
Details
Do it in writing, and include:
Salary/benefits
Terms/conditions
Title
Supervisor
Introductory?
FINAL THOUGHTS
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FINAL THOUGHTS
Personality testing
Big data/analytics: disparate impact?
Hiring software/inputs
More commonality = class actions
Randomizer: Don’t consider all
candidates
Algorithm mix: changes/job specific
