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THE TOP 10 MISTAKES IN HIRING PROGRAM 1 OF THE STERLING/JACKSON LEWIS 2010 COMPLIMENTARY WEBINAR SERIES

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THE TOP 10 MISTAKES IN HIRING PROGRAM 1 OF THE STERLING/JACKSON LEWIS 2010 COMPLIMENTARY WEBINAR SERIES. March 23, 2010 Presented By: Todd H. Girshon, Esq. Richard I. Greenberg, Esq. About Sterling Infosystems, Inc. Established in 1975

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THE TOP 10 MISTAKES IN HIRINGPROGRAM 1 OF THE STERLING/JACKSON LEWIS 2010 COMPLIMENTARY WEBINAR SERIES

March 23, 2010

Presented By:

Todd H. Girshon, Esq.

Richard I. Greenberg, Esq.

about sterling infosystems inc
About Sterling Infosystems, Inc.
  • Established in 1975
  • New York HQ; Offices in the USA coast-to-coast; Mumbai, India
    • 500+ Employees, including a global network of researchers and verifiers
  • Provides over 8,500 clients with employment-related background screening, recruiting and talent management services and, through its Bishops Services subsidiary, corporate due diligence and background investigations for senior executive and Board appointees
  • Standards of Excellence
    • Lean Six Sigma Process Orientation
    • International Organization for Standardization (ISO) Certification 9001:2000
    • Safe Harbor Certified
    • HR-XML Certified
the sterling difference
The Sterling Difference
  • Recognition / Awards
  • INC 5000- Fastest growing companies 2007 and 2008
  • InfoWorld- Top 10 of 100 Best IT Projects of 2007
  • Deloitte & Touche USA LLP- Technology FAST 500- Fastest growing technology Companies in North America
  • Ernst & Young- Entrepreneur of the year- CEO William Greenblatt- 2006
  • Experience & Solid Track Record
  • Amongst the largest privately-held company in the industry
  • Same ownership since inception
  • 33 out of 34 years of continuous organic growth
  • 96% client retention rate
  • Customized Solutions
  • Industry specific solutions, e.g. contractor management intelligence
  • Tailored adjudication protocols to decrease time to hire
  • Customized reporting and notifications allowing management to make accurate hiring decisions; customized invoicing options
  • “High-Touch” Relationship Model
  • Committed service representatives for program oversight
  • Lean six-sigma consultants for continued process improvement
  • Unique Sterling Client codes for automated telephonic routing
  • Real time data regarding response time, abandon rate and first contact resolution
about jackson lewis llp
About Jackson Lewis LLP

Represents management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation

Over 50 years of experience; founded in 1958 in New York City

More than 600 attorneys in 45 offices nationwide

National perspective and sensitivity to the nuances of regional business environments

Represents over 13,000 clients in every state in the U.S.

In the last five years, the firm has litigated more than 9,000 employment law cases

practice areas
Practice Areas
  • Immigration
  • International Employment Issues
  • Labor Relations, including Preventive Practices
  • Management Training, including E-Based Training
  • Public Sector
  • Reductions in Force and WARN
  • Trade Secrets, Non-Competes and Workplace Technology
  • Wage and Hour Compliance
  • Workplace Safety Compliance
  • Affirmative Action / OFCCP Diversity Planning
  • Alternative Dispute Resolution
  • Class Action and Complex Litigation
  • Corporate Governance and Internal Investigations
  • Disability Leave and Health Management
  • Drug Testing and Substance Abuse Management
  • Employee Benefits Counseling, Executive Compensation, Benefits Litigation and Workplace Privacy
  • Employment Litigation and E-Discovery
industries represented
Industries Represented

Jackson Lewis represents a wide range of companies in a variety of industries including, but not limited to:

overview of today s program
Overview of Today’s Program
  • First Program Of This Year’s Series Focuses On Issues Relevant To Commencement of Employment Relationship
  • Goal Is To Provide Legal and Practical Advice
  • We Will Attempt To Provide Both A Preventive And A Litigation Perspective
  • We Look Forward To Questions
  • Now, On To The Top Ten Mistakes In Hiring…
1 failure to develop an overall strategy for the organization s hiring process
1 – Failure To Develop An Overall Strategy For The Organization’s Hiring Process
  • The many facets of the hiring process do not exist in a vacuum.
  • Do job advertisements track job descriptions?
  • Are all hiring managers trained on interviewing?
  • Is the criminal background inquiry on the employment application tied to the background check disqualification guidelines?
  • Are there clear non-discriminatory systems in place?
  • PREVENTIVE PERSPECTIVE – HELPS TO FORESEE ISSUES
  • LITIGATION PERSPECTIVE – INCONSISTENCIES LEAD TO PRETEXT PROBLEMS/FAILURE TO EXPLAIN BASIS FOR AN ORGANIZATION’S STRATEGIES HURTS WITNESS CREDIBILITY
2 failure to ensure job advertisements are lawful
2 – Failure To Ensure Job Advertisements Are Lawful
  • Equal Employment Opportunity (EEO) Statement Is Key.
  • Unless BFOQ, No Preference For Applicants From Any Protected Classification.
  • If Job Duties Are Summarized, Ensure They Are Accurate And Comport With Job Description Or True Job Duties.
  • Don’t Mislead – No Organization Wants An Angry New Hire.
  • Proofread And Watch Your Wording.
failure to ensure job advertisements are lawful
Failure To Ensure Job Advertisements Are Lawful
  • SCARY TANGENT – Watch For Administrative Agencies Sending Out “Testers” In Response To Job Advertisements
  • i.e. – Waitresses Wanted; Must Be Thin; Italians Only
  • QUESTION: What About Must Be Reliable?
  • PREVENTIVE PERSPECTIVE – HELPS TO DEFINE BUSINESS NEEDS TO INTERVIEWERS
  • LITIGATION PERSPECTIVE – DON’T ALLOW THE JOB ADVERTISEMENT TO BE PRIMARY OR SECONDARY EVIDENCE OF DISCRIMINATION
3 failure to ensure the organization s employment application is lawful
3 – Failure To Ensure The Organization’s Employment Application Is Lawful
  • Focus Must Be On Job-Related Inquiries.
  • Avoid Obtaining Information Regarding Protected Classifications.
  • Be Careful Of State Tangents, Especially With Criminal Background Inquiries.
  • Strong Applicant Statement.
  • All Applicants Should Complete Application -- Separate Resume Is Not Enough.
  • Same Principles Apply To Electronic Applications.
job applications permissible questions
Job Applications: Permissible Questions
  • NAME
  • CURRENT ADDRESS
  • WORK WEEKENDS, EVENINGS, OR OVERTIME? (if the job requires it)
  • DOES THE APPLICANT HAVE THE LEGAL RIGHT TO WORK IN THE UNITED STATES (may ask applicant to furnish verification)
job applications permissible questions cont d
Job Applications: Permissible Questions (cont’d)
  • CRIMINAL BACKGROUND – subject to state tangents
  • FOREIGN LANGUAGE ABILITY: Ok to ask if job related
  • EDUCATION AND TRAINING: educational history, including schools attended and degrees obtained
  • WORK EXPERIENCE: work experience, former employers, reasons the applicant left employment, and pertinent skills
job applications permissible questions cont d15
Job Applications: Permissible Questions (cont’d)
  • Military Service: Limit questions to skills and training for the particular job applied for
  • Personal and Professional References
  • Professional or other associations that have a bearing on the job requirements
  • Agreement/Certification of Information: Applicant should sign and date the agreement, and certify that the information given is true and complete to the best of applicant’s knowledge
job applications don ts
Job Applications: DON’Ts
  • Do not ask for “maiden” or “unmarried” name, or title -- “Ms. Mrs. or Miss”
  • Protected categories (race, color, religion, ancestry, sex, pregnancy, national origin, age, disability/handicap, marital status, familial status or sexual orientation)
  • Do not ask whether employee rents or owns residence; length of time in residence or list of previous addresses
don ts cont d
DON’Ts (cont’d)
  • Never ask an employee’s family commitments, whether he or she has children
  • Do not ask whether applicant is a citizen, or applicant’s national origin or birthplace
  • Do not ask age or birth date, or date of high school graduation
  • Do not ask for social security number on employment application form itself
don ts cont d18
DON’Ts (cont’d)
  • Do not ask applicants whether they have ever been arrested
  • Do not ask applicants’ race or color, or require a physical description or photograph
  • Do not ask applicant’s gender
  • Do not ask for “native” language or whether English is “second” language
don ts cont d19
DON’Ts (cont’d)
  • Do not ask whether applicant served in another country’s military; do not ask type of discharge received, unless job-related; do not require applicants to submit their military discharge or service records prior to employment
  • Do not ask the applicant to list club memberships, associations or union memberships
don t forget applicant tracking requirements if applicable
Don’t Forget Applicant Tracking Requirements If Applicable
  • Federal Contractors Must Ensure They Obtain Applicant Self-Identification Forms For Affirmative Action Program Compliance.
  • Detailed Analysis With Electronic Applicants.
failure to ensure the organization s employment application is lawful
Failure To Ensure The Organization’s Employment Application Is Lawful
  • PREVENTIVE PERSPECTIVE – A RESUME IS A MANUFACTURED DOCUMENT; AN APPLICATION ALLOWS YOU TO OBTAIN VITAL INFORMATION TO HELP EVALUATE THE APPLICANT AS WELL AS TO CONDUCT THE INTERVIEW
  • LITIGATION PERSPECTIVE – APPLICANT MISSTATEMENTS IN LITIGATION HELP DAMAGE CREDIBILITY OF PLAINTIFFS AND MAY SUPPORT AFTER-ACQUIRED EVIDENCE AFFIRMATIVE DEFENSE/ UNLAWFUL QUERIES CAN BE EVIDENCE OF DISCRIMINATION
4 failure to ensure interviewers are trained to ask appropriate lawful questions
4 - Failure To Ensure Interviewers Are Trained To Ask Appropriate Lawful Questions
  • Why do we interview? To obtain necessary information about job applicants. THE FOCUS MUST BE ON THE APPLICANT’S QUALIFICATIONS FOR THE JOB AND NOT THE APPLICANT HIMSELF/HERSELF.
  • General rule: limit inquiries to only those subjects necessary to evaluate the applicant’s suitability to perform his or her job.
  • Applicants, employees and investigatory agencies (like the EEOC) will presume that an employer uses all information it collects in making hiring decisions.
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Keys to Effective and Appropriate Interviewing:

  • Review application prior to interview for holes and areas of specific focus.
  • Be sure all questions are job-related. Ask about applicant’s experience, skills, abilities and past performance.
  • Treat all applicants the same.
do s and don ts improper questions can lead to liability
Do’s and Don’ts: Improper Questions Can Lead to Liability
  • If a job requires overtime, travel or relocation, explain what is required and ask whether the applicant can fulfill these requirements. But applicant need not advise of unavailability due to religious needs.
  • Focus on the substance of a candidate’s experience rather than on the number of years of experience the candidate has.
do s and don ts improper questions can lead to liability25
Do’s and Don’ts: Improper Questions Can Lead to Liability
  • If you ask about convictions, make clear that criminal convictions are not an absolute bar to employment but will be considered in relation to specific job requirements.
do s and don ts improper questions can lead to liability26
Do’s and Don’ts: Improper Questions Can Lead to Liability
  • Marriage or Family Status: Avoid questions about marital status, number of children, and child care.
  • Avoid questions that presume married women or people with children will be less able to work long hours. Do not request information about child care arrangements.
slide27

Do’s and Don’ts: Improper Questions Can Lead to Liability

  • Avoid questions about home life, social interests and hobbies.
  • Pregnancy; childbearing plans: AVOID THE SUBJECT ENTIRELY!!! Do not ask any applicant, male or female, about his or her plans to have children in the future.
  • Age: Do not ask questions or make any statements or references to an applicant’s age, including, date of birth or graduation dates.
slide28

Do’s and Don’ts: Improper Questions Can Lead to Liability

  • Religion: Do not ask an applicant’s religious faith, denomination or affiliation, or which church the applicant belongs to.
  • Personal appearance: Do not comment on an applicant’s personal appearance or dress, including, in particular, hairstyles or dress that may be associated with a particular racial or ethnic group.
slide29

Do’s and Don’ts: Improper Questions Can Lead to Liability

  • Political Affiliation: Do not ask an applicant’s political affiliation or other questions that may elicit information about the applicant’s political views.
  • Source of income: Do not ask an applicant whether he or she receives alimony or child support, or other questions that may elicit information about the applicant’s sources of income.
slide30

Do’s and Don’ts: Improper Questions Can Lead to Liability

  • Do not ask whether applicant is a citizen or applicant’s national origin or birthplace.
  • Do not ask applicants whether they have ever been arrested.
  • Do not ask “native” language, where or how the applicant learned the language or whether English is “second” language.
slide31

Do’s and Don’ts: Improper Questions Can Lead to Liability

  • Club Memberships, Associations, Union Memberships: only ask about professional or other associations that have a bearing on the job requirements.
  • Sexual orientation: Do not ask questions about sexual orientation or questions that might be interpreted as asking about sexual orientation (for example, the gender of someone’s roommate).
disability tangent
Disability Tangent
  • Do not ask any questions regarding disability unless the individual has a clear disability such as blindness – then simply ask how the person could perform the job duties with or without a reasonable accommodation.
  • After conditional offer, limitations on inquiries are removed
failure to ensure interviewers are trained to ask appropriate lawful questions
Failure To Ensure Interviewers Are Trained To Ask Appropriate Lawful Questions
  • PREVENTIVE PERSPECTIVE – USE THE OPPORTUNITY TO GET A READ ON THE APPLICANT; DOES HE/SHE LOOK YOU IN THE EYES; IS HE OR SHE EVASIVE – TRUST YOUR INSTINCTS
  • LITIGATION PERSPECTIVE – IMPROPER QUESTIONS REGULARLY COME UP TO SUPPORT LATER CLAIMS OF DISCRIMINATION – i.e., I WAS TERMINATED BECAUSE OF MY GENDER AND EVEN DURING MY INTERVIEW THEY ASKED ME BUT NOT MALE APPLICANTS IF I HAD CHILD CARE RESPONSIBILITIES…
5 failure to implement and apply consistent lawful background check processes
5 - Failure To Implement And Apply Consistent Lawful Background Check Processes
  • We cannot do a Sterling Program and not discuss background checks.
  • The third program of this year’s series is focused on these issues.
  • With that said, understand and comply with FCRA and state derivatives.
  • Understand what information can and cannot be used to disqualify under federal and state laws.
federal fair credit reporting act fcra
Federal Fair Credit Reporting Act (“FCRA”)
  • Consent
  • Pre-Adverse Action Notice
  • Adverse Action Notice
  • State Tangents
failure to implement and apply consistent lawful background check processes
Failure To Implement And Apply Consistent Lawful Background Check Processes
  • UNANSWERED QUESTION: What about social network checks?
  • PREVENTIVE PERSPECTIVE – TAKE ADVANTAGE OF THE OPPORTUNITY TO LEARN ABOUT YOUR POTENTIAL NEW HIRE IN A LAWFUL MANNER
  • LITIGATION PERSPECTIVE – AVOID NEGLIGENT HIRING CLAIMS; BEWARE OF RISING FCRA CLASS LITIGATION
6 failure to conduct skills tests when appropriate
6 - Failure To Conduct Skills Tests When Appropriate.
  • An employer has the right to determine if someone has the basic skills to perform the job.
  • If it is not a medical exam, it can be pre-conditional offer.
  • Just ensure it is truly job-related.
  • PREVENTIVE PERSPECTIVE – AVOID HIRING SOMEONE WHO DOES NOT HAVE BASIC SKILLS TO SUCCEED
  • LITIGATION PERSPECTIVE – A FRUSTRATED NEW HIRE IS A POTENTIAL LITIGANT.
7 failure to understand legal issues surrounding medical exams and personality tests
7 - Failure To Understand Legal Issues Surrounding Medical Exams And Personality Tests
  • A medical exam may only be conducted post-conditional offer as the final step of the hiring process.
  • Any requirement must be non-discriminatory.
  • Ensure personality test is not a medical exam.
  • Ensure personality test is validated – no one size fits all approach.
  • Beware of state limitations.
  • Balance pros and cons.
  • Any obtained medical information must be kept confidential.
failure to understand legal issues surrounding medical exams and personality tests
Failure To Understand Legal Issues Surrounding Medical Exams And Personality Tests
  • PREVENTIVE PERSPECTIVE – THIS IS AN AREA EMPLOYERS REALLY WANT TO CONSIDER THE QUESTION OF WHETHER THE TEST OR TESTS ARE WORTH THE RISK.
  • LITIGATION PERSPECTIVE – SIGNIFICANT LIABILITY FOR IMPROPER MEDICAL EXAMS OR INQUIRIES. FOCUS FOR EEOC. PERSONALITY TESTS RAISE ADVERSE IMPACT CONCERNS.
8 failure to use lawful protective offer letters
8 - Failure To Use Lawful, Protective Offer Letters
  • If hire is conditional on background checks or other issues, expressly state so.
  • At-will statement.
  • Potential avenue to satisfy state new hire notification requirements.
  • Reference other relevant documents.
failure to use lawful protective offer letters
Failure To Use Lawful, Protective Offer Letters
  • PREVENTIVE PERSPECTIVE – VITAL TOOL TO ADVISE POTENTIAL NEW HIRE OF TERMS AND CONDITIONS OF EMPLOYMENT AND AVOID MISUNDERSRANDINGS
  • LITIGATION PERSPECTIVE – AN IMPORTANT AVENUE TO REITERATE AT-WILL STATUS AND AVOID CLAIMS OF IMPLIED CONTRACT.
9 failure to provide notice of agreements that must be signed as a condition of hire
9 - Failure To Provide Notice Of Agreements That Must Be Signed As A Condition of Hire
  • Use Offer Letter to advise potential new hire if a confidentiality or restrictive covenant agreement must be signed as a condition of hire.
  • Same concepts apply to commission plans.
  • And of course ensure the agreements are legally enforceable and clear.
  • PREVENTIVE PERSPECTIVE – AGAIN, HELPS TO AVOID THE ANGRY NEW HIRE WHO FEELS MISLED.
  • LITIGATION PERSPECTIVE – PLAINTIFFS’ LAWYERS LOOK FOR ANY INCONSISTENCIES IN PAPERWORK. TIE IT ALL TOGETHER.
10 failure to implement and apply protocols for employment verification
10 - Failure To Implement And Apply Protocols For Employment Verification
  • This moves a bit into the on-boarding phase but…
  • Documentation for I-9’s must be presented within 72 hours of start date.
  • Parts of I-9 must be completed on Day 1.
  • Very specific rules.
  • Area of Government Focus.
i 9 forms
I-9 Forms
  • Civil Penalties And Imprisonment For Violations
  • Inspections For Compliance
    • Keep Them!
i 9 forms45
I-9 Forms
  • Do NOT Require More Forms Than Required By I-9
  • Do NOT Reject Documents Which Are “On Their Face Genuine”  Unfair Immigration Practice
    • Do Not Ask For An INS Document To Confirm Expiration of Work Authorization
    • Do Not Consider Expiration Of Work Authorization In Making Employment Decisions
  • You Re Not Required To Be A Document Expert – On Its Face Genuine Standard
i 9 forms46
I-9 Forms
  • Employer Is Not Required to Make Copies Of Documents For Part 2
    • But, Retaining Copies Tends To Negate Inference That Documents Were Obvious Forgeries and Permits Errors to Be Remedied During An Audit
failure to implement and apply protocols for employment verification
Failure To Implement And Apply Protocols For Employment Verification
  • PREVENTIVE PERSPECTIVE – ENSURE NEW HIRES KNOW THAT THEY MUST PRODUCE DOCUMENTS. IT DOES NOT HELP AN ORGANIZATION TO EMPLOY SOMEONE FOR 3 DAYS.
  • LITIGATION PERSPECTIVE – PLAINTIFFS’ LAWYERS WOULD LOVE TO PRESENT IMMIGRATION VIOLATIONS TO A JURY TO DAMAGE AN EMPLOYER’S CREDIBILITY; CIVIL AND CRIMINAL IMMIGRATION – RELATED LITIGATION IS ON THE RISE.
final point recordkeeping and retention
FINAL POINT – Recordkeeping and Retention
  • Ensure documents are retained for necessary federal and state retention periods.
  • Ensure location and form of retention is lawful.
  • In general, electronic retention is permissible but security of system is key.
what s next
WHAT’S NEXT
  • This year’s second program will focus on the number 1 area of liability in the employment arena – Wage and Hour Liability.
  • We look forward to that program and thank you for your attention today.

SEE YOU IN JUNE…

and of course
AND OF COURSE…

THE MATERIAL CONTAINED IN THIS PRESENTATION WAS PREPARED BY THE LAW FIRM OF JACKSON LEWIS LLP FOR THE ATTENDEES’ OWN REFERENCE IN CONNECTION WITH THIS SEMINAR. SINCE THE MATERIAL AND RELATED DISCUSSIONS ARE INFORMATIONAL AND EDUCATIONAL IN NATURE AND REPRESENT THE SPEAKER’S OWN VIEWS, ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR RELATED DISCUSSIONS TO BE LEGAL OR OTHER ADVICE. PROFESSIONAL ADVICE SHOULD BE OBTAINED BEFORE ATTEMPTING TO ADDRESS ANY LEGAL SITUATION OR PROBLEM.

questions thoughts
Questions/Thoughts?
  • If you have any questions or thoughts, please contact Sterling Infosystems, Inc. and mention this webinar.
  • To learn more about Sterling and Jackson Lewis, visit our websites:
    • Sterling Infosystems Inc. can be found at:http://www.sterlinginfosystems.com
    • Jackson Lewis, LLP can be found at:http://www.jacksonlewis.com/
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