Jeffery L. ThompsonJeffery L. ThompsonTelephone: 478-621-2423Telephone: 478-621-2423

E-mail: jthompson@constangy.comE-mail: jthompson@constangy.com

Recruiting the Best CrewRecruiting the Best Crew

Topics That Will Be Topics That Will Be DiscussedDiscussed

EEOC Strategic Enforcement PlanEEOC Strategic Enforcement Plan

Interview Dos and DontsInterview Dos and Donts

Background Checks, Credit Checks, Background Checks, Credit Checks, and the EEOCand the EEOC

EEOC Strategic Enforcement EEOC Strategic Enforcement PlanPlan

ADA Targeting (end of leave, ADA Targeting (end of leave, essential functions, reasonable essential functions, reasonable accommodations with new accommodations with new technologies, the conversation)technologies, the conversation)

Pregnancy Accommodations (not Pregnancy Accommodations (not ADA generally but evaluated ADA generally but evaluated differences between how other differences between how other conditions treated)conditions treated)

Interviewing Dos and Don’tsInterviewing Dos and Don’ts

EEOC Nationwide PrioritiesEEOC Nationwide Priorities

Eliminating Systemic Barriers in Eliminating Systemic Barriers in Recruitment and HiringRecruitment and Hiring Exclusionary Policies and PracticesExclusionary Policies and Practices Restrictive Application Processes (i.e., Restrictive Application Processes (i.e.,

pre-employment tests, background pre-employment tests, background screens, date of birth screens and on-screens, date of birth screens and on-line applications).line applications).

Employment Laws Employment Laws Relevant to HiringRelevant to Hiring

Title VII of Civil Rights Act of Title VII of Civil Rights Act of 19641964

Americans With Disabilities ActAmericans With Disabilities Act

Age Discrimination in Age Discrimination in Employment ActEmployment Act

Pregnancy Discrimination ActPregnancy Discrimination Act

Fair Credit Reporting ActFair Credit Reporting Act

EEOC Nationwide PrioritiesEEOC Nationwide Priorities

Eliminating Systemic Barriers in Eliminating Systemic Barriers in Recruitment and HiringRecruitment and Hiring Exclusionary Policies and PracticesExclusionary Policies and Practices Channeling/Steering of Individuals Into Channeling/Steering of Individuals Into

Specific Jobs Due to Their Status in a Specific Jobs Due to Their Status in a Particular GroupParticular Group

Restrictive Application Processes (i.e., Restrictive Application Processes (i.e., pre-employment tests, background pre-employment tests, background screens, date of birth screens and on-line screens, date of birth screens and on-line applications).applications).

Title VII ofTitle VII of Civil Rights Act of 1964 Civil Rights Act of 1964

Prohibits DiscriminationProhibits Discrimination

RaceRace

ColorColor

ReligionReligion

National OriginNational Origin

GenderGender

Sex (including pregnancy)Sex (including pregnancy)

Title VII ofTitle VII of Civil Rights Act of 1964 Civil Rights Act of 1964

Enforced By EEOCEnforced By EEOC

Violations:Violations:

Disparate TreatmentDisparate Treatment

Disparate ImpactDisparate Impact

Age Discrimination in Age Discrimination in Employment ActEmployment Act

(ADEA)(ADEA)

Employees 40 and OlderEmployees 40 and Older

Discharged or DemotedDischarged or Demoted

Replaced by Person Under Replaced by Person Under 4040

Qualified to do JobQualified to do Job

Americans with Disabilities Americans with Disabilities ActAct

(ADA)(ADA) ““Qualified” IndividualQualified” Individual

With “Disability”With “Disability”

Reasonable AccommodationReasonable Accommodation

Are You Violating the ADA ?Are You Violating the ADA ? Improper Medical Questioning (Pre-Improper Medical Questioning (Pre-

Offer Questioning)Offer Questioning) Failure to Maintain Medical Records Failure to Maintain Medical Records

Properly – Keep Them SeparatelyProperly – Keep Them Separately Failure to AccommodateFailure to Accommodate Failure to Engage in the “Interactive Failure to Engage in the “Interactive

Process”Process” ““Regarding” Employee’s As Regarding” Employee’s As

DisabledDisabled

Example of Discrimination Example of Discrimination Claim Based on InterviewClaim Based on Interview

Legal?Legal?

Legal?Legal?

Proper HiringProper Hiring

Follow ProceduresFollow Procedures

Do Not Write on ApplicationsDo Not Write on Applications

Record Notes on Separate Sheet of PaperRecord Notes on Separate Sheet of Paper

What Questions Have You What Questions Have You Always Wanted to Ask Always Wanted to Ask During an Interview?During an Interview?

Things Not To Discuss:Things Not To Discuss:

Age of applicant. Age of applicant. Religion of applicant. Religion of applicant. Home ownership. Car ownership. Home ownership. Car ownership. Arrest records/conviction for crimes that Arrest records/conviction for crimes that

are not related to traits necessary for job are not related to traits necessary for job performance. performance.

Martial status. Martial status. Pregnancy.Pregnancy.

Things Not To Discuss:Things Not To Discuss: Child care problems/parenting Child care problems/parenting

responsibilities.responsibilities. Plans to have children/number of children. Plans to have children/number of children. Contraceptive practices. Contraceptive practices. Unwed motherhood or any associated Unwed motherhood or any associated

issues. issues. Height and weight (unless job related). Height and weight (unless job related). Race, color, or national origin. Race, color, or national origin.

Things Not To Discuss:Things Not To Discuss:

Service and membership in National Service and membership in National Guard or Reserve.Guard or Reserve.

Medical conditions (Can obtain Medical conditions (Can obtain information in post-job offer phase). information in post-job offer phase).

Submission to polygraph exam. Submission to polygraph exam.

Comments about dress, hair length, Comments about dress, hair length, general appearance. general appearance.

Interview Do’s & Interview Do’s & Don’tsDon’ts::

Please list any diseases for which Please list any diseases for which you've been treated within the past you've been treated within the past two years. two years.

Have you ever been hospitalized? If Have you ever been hospitalized? If so, for what condition? so, for what condition?

Have you ever suffered any mental Have you ever suffered any mental impairment or been treated for any impairment or been treated for any mental conditions? mental conditions?

EEOC - Criminal Background EEOC - Criminal Background ChecksChecks

Discussion Question #1Discussion Question #1

Justin has applied for a job at your Justin has applied for a job at your hospital. His background check hospital. His background check shows an eleven year old conviction shows an eleven year old conviction for resisting arrest and two for resisting arrest and two convictions for writing worthless convictions for writing worthless checks that are five years old. Do checks that are five years old. Do you hire Justin?you hire Justin?

EEOC’s Position on Criminal EEOC’s Position on Criminal Background ChecksBackground Checks

Uniform Employee Selection ProceduresUniform Employee Selection Procedures Targeted screen consideringTargeted screen considering

The nature of the crime,The nature of the crime, The time elapsed,The time elapsed, The nature of the job, ANDThe nature of the job, AND Provides an opportunity for an individualized Provides an opportunity for an individualized

assessment to determine if job-related and assessment to determine if job-related and consistent with business necessity.consistent with business necessity.

EEOC and Criminal EEOC and Criminal Background ChecksBackground Checks

June 11, 2013, EEOC filed 2 suits that June 11, 2013, EEOC filed 2 suits that received extensive media coverage:received extensive media coverage: EEOC v. Dolgencorp dba Dollar GeneralEEOC v. Dolgencorp dba Dollar General EEOC v. BMW Manufacturing Co.EEOC v. BMW Manufacturing Co.

Agency has had little success in existing Agency has had little success in existing cases.cases. EEOC v. PeoplemarkEEOC v. Peoplemark, Inc.– blanket prohibition , Inc.– blanket prohibition

on hiring convicted felons.on hiring convicted felons.

Hot Topic:Hot Topic:EEOC on Criminal BackgroundsEEOC on Criminal Backgrounds EEOC sent out new enforcement EEOC sent out new enforcement

guidance as of April 25, 2012guidance as of April 25, 2012 An employer’s neutral policy of An employer’s neutral policy of

excluding applicants based on certain excluding applicants based on certain criminal conduct may violate the law if criminal conduct may violate the law if not not job relatedjob related and consistent with and consistent with business necessitybusiness necessity

EEOC is concerned with EEOC is concerned with disparatedisparate treatmenttreatment and and disparate impactdisparate impact

Example of “Exclusionary Example of “Exclusionary Policies/Practices”Policies/Practices”

Credit History ChecksCredit History Checks

Credit HistoryCredit History

Can I lawfully check it?Can I lawfully check it?

Yes, needs to be job related and Yes, needs to be job related and consistent with business necessity.consistent with business necessity.

Bankruptcy Protection ActBankruptcy Protection Act

Cannot discriminate based Cannot discriminate based on bankruptcyon bankruptcy

Applies to hiring, Applies to hiring, promotions, terminations, promotions, terminations, etc.etc.

Compile and Evaluate DataCompile and Evaluate Data Does the information obtained from the Does the information obtained from the

application, resume, and reference checks line application, resume, and reference checks line up?up?

Are there any gaps of time which are Are there any gaps of time which are unaccounted for?unaccounted for?

Are there inconsistent or irreconcilable Are there inconsistent or irreconcilable accounts?accounts?

If an inconsistency exists is it worth exploring If an inconsistency exists is it worth exploring further?further?

Prepare a list of questions for interviewing the Prepare a list of questions for interviewing the applicant.applicant.

Other Problematic AreasOther Problematic Areas

Promises regarding the jobPromises regarding the job

Promises regarding length of employmentPromises regarding length of employment

Keeping applications in desksKeeping applications in desks

Checklist for Interviewing Checklist for Interviewing Job ApplicantsJob Applicants

AndAnd Avoiding Litigation!Avoiding Litigation!

Hiring Checklist:Hiring Checklist: Get a good employment application. Require Get a good employment application. Require

applicant, in person, to complete applicant, in person, to complete allall information on application.information on application.

Maintain application for no longer than one (1) Maintain application for no longer than one (1) year.year.

State on application how long the application State on application how long the application is active. Write interview notes separate from is active. Write interview notes separate from application. Don’t use application. Don’t use codescodes..

Do not take applications unless you have a job Do not take applications unless you have a job position open.position open.

Hiring Checklist:Hiring Checklist: Accurately define the requirements of the Accurately define the requirements of the

job in terms of skills, education, physical job in terms of skills, education, physical requirements, personality, and requirements, personality, and experience.experience.

Make sure that all questions are job Make sure that all questions are job related.related.

Prior to interviewing develop a list of Prior to interviewing develop a list of open ended questions.open ended questions.

Conduct a thorough background check. Conduct a thorough background check.

Hiring Checklist:Hiring Checklist: Avoid telling applicants that they are hired during Avoid telling applicants that they are hired during

interview. Don’t extend offers over telephone.interview. Don’t extend offers over telephone. Review orientation checklist, work rules and Review orientation checklist, work rules and

requirements of employment prior to hiring and requirements of employment prior to hiring and get get commitmentcommitment from applicant to follow from applicant to follow youryour policies.policies.

Never promise applicant employment for a “fixed Never promise applicant employment for a “fixed length” of time, discharge of cause or anything length” of time, discharge of cause or anything else that could undermine employment “at-will.”else that could undermine employment “at-will.”

Final ThoughtsFinal Thoughts

It Starts At HomeIt Starts At Home

- Lilly Tomlin- Lilly Tomlin