Hiring & Firing in 2015: The Good, the Bad, and the Ugly

Transcription

1 Hiring & Firing in 2015: The Good, the Bad, and the Ugly Nancy Leonard / Kimberly Seten /

2 The Application

3 EEOC Nationwide Priorities Eliminating Systemic Barriers in Recruitment and Hiring Restrictive Application Processes (i.e., pre-employment tests, background screens, date of birth screens and on-line applications).

4 Ban the Box Fewer Boxes Than Ever 7 States HI, IL, MA, MN, NJ, RI, OR 9 Cities Baltimore, MD, Buffalo, NY, Chicago, IL, Columbia, MO, New York, NY (effective next month), Philadelphia, PA, Rochester, NY, San Francisco, CA, Seattle, WA Washington, DC 50+ Municipalities Many such ordinances exempt applications for "sensitive" positions, such as those involving work with children.

5 Digital Hiring Platforms

6 Digital Hiring Platforms Mosaictrack

7 Digital Hiring Platforms

8 Legal Risks Disparate Impact Facially neutral algorithms Disparate Treatment Disability Discrimination Class Actions

9 Screening Candidates

10 Criminal Backgrounds EEOC s enforcement guidance addressed criminal background checks as a priority area An employer s neutral policy of excluding applicants based on certain criminal conduct may violate the law if not job-related and consistent with business necessity EEOC remained concerned with disparate treatment and disparate impact

11 Background Checks It s been a bit of a Rollercoaster Ride for the EEOC

12 Title VII Background Checks EEOC v. Freeman, 778 F.3d 463 (4 th Cir. 2015) Issue: Whether federal District Court in Maryland properly excluded flawed expert testimony of EEOC regarding national event-planning company s use of criminal background and credit checks which had disparate impact on African-American and male job applicants. Court: Expert evidence was properly excluded. Key Language: Expert evidence is admissible if it rests on a reliable foundation and is relevant. But here, a mind-boggling and alarming number of errors and analytical fallacies in [the expert s] reports, making it impossible to rely on any of his conclusions.

13 Title VII Background Checks EEOC v. BMW Another criminal background check case. Screening policies barred employment in blanket fashion for those with convictions in certain types of crimes regardless of when the employee had been convicted or the severity of the conviction. The EEOC s 2012 guidance on the subject makes clear that employers reviewing criminal histories need to show that the consideration is jobrelated and consistent with a business necessity. Settled for $1.6 Million.

14 Title VII Background Checks Upshot EEOC shows no signs of abating its uber-aggressive stance toward criminal and credit background checks. Blanket policies that apply across different positions or classes of jobs will likely receive special scrutiny from the agency. Pay close attention to casting too wide a net and make sure the filtering criteria is tailored to the position in question. However, checks can be legal! Keys: Reasonable nexus between job and type of conviction (unless violent crime, etc.). Apply standard in similar way to all applicants and employees (esp. in job category). Be especially careful if certain background problems are more typical of specific protected groups (race, national origin, etc.). And be prepared to show that policy accurately predict[s] who will be a responsible, reliable, or safe employee. (EEOC Guidance).

15 Title VII / Fair Credit Reporting Act Interaction Background Checks Don t forget the FCRA [15 U.S.C et seq.] In 2014 almost 30 FCRA class action lawsuits filed in the U.S.! Detailed consent, notice and disclosure requirements to obtain and use any consumer report with applicants and employees especially if any adverse action is taken based on the report. Consumer report = Use of a consumer reporting agency (third-party background check co.) Includes criminal histories, credit reports and other background checks In particular: (1) separate consent form; (2) prior notice of proposed adverse action; (3) notice of adverse action; (4) summary of rights under FCRA; (5) provide appropriate copies of consumer report and contact information for the consumer reporting agency to obtain copy or ask questions.

16 Don t Let The EEOC Discourage You From Conducting Legal Background Checks And Waiting For The Results! Avoid liability Mitigate risks Protect employees Ensure the hiring of the best candidates for the job Negligent hiring and retention claims

17 Other Screening Tools Drug Screening ADA GINA HIPAA

18 Social Media Screening

19 The Electronic Age Americans aged who use social networks report spending an average of 3.2 hours per day doing so. Six of ten employees report using social media at work.

20 Benefits of Applicant Social Media Screening Searching social media provides a way for employers to learn helpful information they may not get during the typical hiring process. Resume inconsistencies Hobbies Attitude

21 Pitfalls of Applicant Social Media Screening Searching social media provides a way for employers to learn problematic information they normally would not (and should not) get during the hiring process. Age Genetic disorders/predispositions Religious beliefs National origin Other protected characteristics

22 Best Practices for Applicant Social Media Screening Have a process Identify who will be screened Identify who will conduct screening Set parameters on what will be screened Identify what information will be passed along Document your process and results

23 Interviewing

24 Laws That Govern the Interviewing/Hiring Process Title VII PDA ADA ADEA FMLA FCRA NLRA USERRA Common Law 24

25 Risk Factors for Potential Common Law Claims employee/applicant is being lured from a desirable situation with another employer employee/applicant is moving from a distant location management makes promises during hiring process management makes representations without verification 25

26 Interviewing Best Practices What Not to Ask Follow Procedures Do Not Write on Applications Record Notes on Separate Sheet of Paper

27 Bottom Line When Interviewing What information is the question designed to elicit? 27

28 Even Unspoken Assumptions Can be Problematic On June 1, 2015, the United States Supreme Court rejected Abercrombie & Fitch s appeal of summary judgment in favor of the EEOC in a religious accommodation case. A job applicant wore a headscarf (a hijab) to an interview, but did not mention her religion or request an exception to Abercrombie s dress code.

29 Even Unspoken Assumptions Can be Problematic Although the applicant did well at the interview, the interviewer was concerned about a potential "Look Policy" violation. The applicant was not hired.

30 Even Unspoken Assumptions Can be Problematic The Supreme Court found that a job applicant need only demonstrate that a prospective employer s desire to avoid providing a religious accommodation was a motivating factor in its decision not to hire, not that the employer actually knew of the need for an accommodation.

31 Accommodating Disabled Applicants Application and employment information materials reflect nondiscrimination Check locations of job applications, worksite and interview are accessible to disabled persons IMPORTANT: if performance test is part of screening process, make sure that disabled applicants know that they can request accommodation for the test 31

32

33 Discharge Red Flags Is the employee in a protected class? Has the employee attempted to organize labor (i.e., unionization)? Has the employee complained about harassment, discrimination, or safety? Has the employee filed a workers compensation claim recently? Are there any health or disability-related issues involved?

34 Determine whether termination is your best or only option Transfer Demotion Referral to counseling Resignation

35 Questions to Consider Before Terminating

36 These Should Give You Heartburn Inconsistent Treatment Inaccurate Performance Reviews Progressive Discipline Not Followed Untimely Investigations Untimely Discipline Unsigned Discipline No Written Discipline/Counseling Secret Files

37 Termination Meeting Checklist Briefly describe the decision and all reasons Specify the separation date Explain why identified for termination State decision has been reviewed and is final Give notification letter (if appropriate) and review any issues regarding severance, benefits or outplacement services

38 Termination Meeting Checklist Listen but do not indicate any willingness to reverse the termination decision Review the logistics transferring of work in progress clearing out the employee s desk or office receiving final pay check and benefits information Try to close the meeting within fifteen minutes

39 The Don ts of a Termination Meeting Don t engage in small talk Don t use humor Don t be apologetic Don t defend, justify or argue Don t threaten Don t deviate from your prepared script Don t use platitudes like I know how you feel or you ll be fine Don t discuss other employees Don t Kick Em in the Teeth on the Way Out

40 Releases.To Use or Not To Use Case by case basis Specific requirements for valid releases under various laws State laws can differ as to waiver requirements California has specific language that MUST be included

41 Releases for Employees over 40 Under the OWBPA, for a release of age discrimination claims to be valid, the release must be "knowing and voluntary." At minimum, this means that the release must: be in writing; be written in a manner that the employee would understand; be in plain, clear language that avoids technical jargon and long, complex sentences; not mislead or misinform the employee executing the release;

42 Releases for Employees over 40 specifically refer to the ADEA; specifically advise the employee to consult an attorney before signing the release; and not require the employee to waive rights or claims arising after the date the employee signs the release. Employee must get additional consideration, above and beyond anything of value to which he or she was already entitled. Can t be wages or benefits already owed. Release must give the employee at least 21 days to decide whether to sign (45 days for an early retirement window). AND give the employee seven days from date of execution to revoke the waiver.

43 Additional Requirements for ADEA Releases Two or More Employees Two or more employees, one of whom is age 40 or over. Required consideration period increases from 21 to 45 days. Employees over 40 get age and job title of the other employees who have been offered severance and asked to sign a release. This requirement applies even when the departures are spaced out over a period of time, as long as it is part of the same decision-making process.

44 ADEA Group Releases The employer must provide the following information to the employees: the class, unit, or group of employees that were covered by the exit program (whether voluntary or involuntary); the eligibility factors for the program; the time limits applicable to the program; the job titles and ages of all of the individuals who (in the case of a voluntary exit incentive program) are eligible for the program, or who (in the case of an involuntary termination program) were selected for the program; and the ages of all individuals in the same job classification or organizational unit who are not eligible for, or who were not selected for, the program.

45 WHAT CAN T BE IN RELEASE EEOC always has the right and responsibility to enforce the ADEA, as with the other federal employment laws Releases may not include provisions that prohibit employees from filing a charge or complaint with the EEOC, including a challenge to the validity of the waiver agreement; or participating in any investigation or proceeding conducted by the EEOC. Can restrict employee s ability to recover money damages in release, but not to file a charge

46 Releases Double Trouble Failure to meet requirements will allow the employee to keep the negotiated funds AND sue for alleged discrimination Form boilerplate releases will subject you to risk of litigation False statements = Invalidation

47 Always Remember How you do things can be more important than what you do! Fairness rules in the eyes of a jury. Always have a reason for actions a legitimate, nondiscriminatory reason. Make sure management actions are done for the right reasons, in the right way, at the right time.

48 Questions?