hiring issues - warner norcross & judd...are several things that employers can and should do to...

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HIRING ISSUES

Dean F. [email protected]


Employment Applications

• One of the most important documents that an employer keeps as a result of the hiring process and one of the most overlooked is the employment application. There are several things that employers can and should do to lessen the risk of hiring a problem employee and each of those things begins with a well thought out and properly filled out employment application. Some practical do's and don'ts include:



• Fill out completely and sign the application form:Make every applicant (even those with resumes) fill out a full job application. Make sure that every question is answered



• Include an at-will statement: Make sure that the job application contains an at-will statement acknowledging the at-will status of any subsequent employment relationship. A sample at-will statement might say the following:

I understand and agree that my employment can be terminated with or without cause and with or without notice at any time at the option of either myself or the company. I understand that no employee of the company has the authority to enter into any agreement for employment for any specified period of time or to make any agreement contrary to the foregoing.



• Include a “truth” statement: Also include a statement whereby the applicant affirms that the representations made in the application are true and the applicant understands that he or she can be terminated if false statements are made. For example:

I affirm that all of the information contained in this application is true and complete and that any falsification, misrepresentation or omission may result in refusal of, or immediate dismissal from my employment.



• Shorten your risk of a lawsuit: Another way to potentially limit you exposure to litigation is to put a paragraph in the job application that shortens the time during which an employee can bring a lawsuit. A statute of limitations sets out how long a person has to sue another. In Michigan, and in many other states, people can agree to a shorter limitations period - as short as 6 months. A paragraph like this in your job application will do the trick:



• I agree that I will not commence any action or suit relating to my employment with the Company (or termination of the employment) more than 180 days after the employment action at issue, and I agree to waive any statute of limitations to the contrary. I understand this means that even if the law would give me the right to wait a longer time to make a claim, I am waiving that right, and any claims not brought within 180 days of the action complained of will be barred.

You should make sure that this paragraph stands out from the rest of the application by using bold prin t or requiring that the paragraph be initialed separatel y.


Social Media – Screening Applicants

• A 2009 Careerbuilder.com survey found that 53% of employers use social networking sites to screen candidates

• Only 25% had done so in 2006


Social Media – Reported Reasons For Rejecting Applicants

• Provocative or revealing photographs or information (53%)

• Posted content about drinking or using drugs (44%)

• Bad mouthing a previous employer, co-worker or client (35%)

• Showed poor communication skills (29%)

• Made discriminatory comments (26%)

• Lied about their background (24%)

• Revealed confidential information from previous employers (20%)

• Sent message using an emoticon such as a smiley face (14%)

• Used “text language” such as “gr8” to spell “great” (8%)


Social Media – Postings That Helped Applicants Get An Offer

• A profile that provided good information as to the candidates personality and fit (50%)

• A profile that supports the candidates professional qualifications (39%)

• A profile that showed that the candidate was creative (38%)

• The candidate showed good communication skills (35%)

• Profile showed that the candidate was well rounded (33%)

• Other people posted good references about the candidate (19%)

• The profile showed that the candidate had won awards or professional recognition (15%)



• Common Law Privacy Claims

• Civil Rights and Employment Discrimination Claims



The typical Facebook information page expressly reveals the individual’s:

• Sex

• Date of Birth

• Marital status

• Religious views



Facebook postings will also commonly reveal:

• Height

• Weight

• Race

• Color

• Disability

• Association with members of a protected class



• Consistency – “who” and “what”

• Job related criteria only

• Review by a non decision maker

• Disclosure

• Permission


Background Checks – Fair Credit Reporting Act

• The FCRA is a consumer protection statute designed primarily to protect the privacy of consumer information and to ensure that information supplied by consumer reporting agencies is accurate.

• A “Consumer Report” is a report that contains information about a person’s personal and credit characteristic, character, general reputation and lifestyle, and which is used as a factor in establishing the person’s eligibility for credit, insurance, employment or other purposes listed in the FCRA.

• “Consumer Reports” include criminal background checks, credit reports or other background checks conducted by third parties.


Fair Credit Reporting Act

Before obtaining a consumer report, an employer must:

• Obtain written authorization from individual

• Notify individual that report may be used

• Notice must be in writing

• Notice must be in a document consisting solely of this notice

Two step process must be followed if an “adverse action” is taken based on a consumer report:



Step 1: Before taking an adverse action, the indiv idual must be given a “pre-adverse action disclosure.” The disc losure should:

• Inform the individual what the pending adverse action is

• Inform the individual that the pending action is based, at least in part, on the consumer report

• Inform the individual that he/she must notify you if the information in the report is incorrect, and

• Provide a deadline for contacting you with notice of inaccuracies

This disclosure must include:• A copy of the consumer report

• A copy of “A Summary of Your Rights Under the Fair Credit Reporting Act”



Step 2: After taking an adverse action, you must g ive the individual an “adverse action notice.” This notice m ust include:

› The name, address and telephone number of the CRA that supplied the report,

› A statement that the CRA that supplied the report did not make the decision to take the adverse action and cannot give the specific reason for it,

› A statement that the consumer has the right to obtain a free copy of the consumer report from the CRA if the consumer request the report within 60 days, and

› A statement setting forth the consumer’s right to dispute directly with the CRA the accuracy or completeness of any information the CRA furnished.


Fair Credit Reporting Act –Consequences of Non-Compliance

• Economic damages (such as lost wages or other monetary losses)

• Emotional distress, humiliation, or similar non-economic damages

• Statutory damages

• Court costs

• Attorney fees

• Punitive dames for deliberate violations


Background Check –EEOC and Criminal Convictions

EEOC has a long-standing policy that excluding individuals from employment because they have a criminal record violates Title VII of the Civil Rights Act of 1964 unless the policy or practice is justified by business necessity.

The EEOC’s position is based on the fact that such policies may have a disparate impact on African Americans and Hispanics.

EEOC’s E-RACE initiative is focusing on “21st Century manifestations of discrimination,” which includes credit and background checks, and arrest and conviction records.


Background Checks –EEOC and Criminal Convictions

EEOC Policy Statement provides that an employer must show that it considered the following three factors to determine whether its decision regarding a criminal conviction was justified by business necessity:

• The nature and gravity of the offenses or offenses;

• The time that has passed since the conviction and/or completion of the sentence; and

• The nature of the job held or sought.


How long a resident of this state or city?

Address or Duration of Residence:

Applicant’s maiden name

Is any additional information relative to a different name necessary to check work record? If yes, explain.

Have you ever worked for this company under a different name?

Original name of an applicant whose name has been changed by court order or otherwise

Applicant’s full name.Name:

Unlawful Pre-employment Inquiries

Lawful Pre-employment Inquiries

Subject

Pre-Employment Inquiry Guide




Subject

Birthplace of applicantBirthplace:

How old are you? What is your date of birth?

[1]Are you 18 years old or older?

Age:

Requirement that applicant submit birth certificate, naturalization or baptismal record

Birthplace of applicant’s parents, spouse or other close relatives

[1] This question may be asked only for the purpose of determining whether applicants are of legal age for employment.





Subject

Inquiry regarding applicant’s weight

Weight:

Inquiry regarding applicant’s height

Height:

Any requirement for a photograph prior to HIRE

Photograph:

Complexion or color of skinRace or Color:

Inquiry into an applicant’s religious denomination, religious affiliations, church, parish, pastor, or religious holidays observed

Religion or Creed:



Requirement that women be given pelvic examinations.

Requirement that an applicant provide any information regarding marital status or children. Are you single or married? Do you have any children? Is your spouse employed? What is your spouse’s name?

Is your spouse employed by this employer?

Marital Status:

Mr., Miss or Mrs. Or an inquiry regarding sex. Inquiry as to the ability to reproduce or advocacy of any form of birth control

Sex:



Subject



Inquiries regarding an individual’s physical or mental condition which are not directly related to the requirements of a specific job and which are used as a factor in making employment decisions in a way which is contrary to the provisions or purposes of the Michigan Handicappers’Civil Rights Act.

Can you perform the duties of the job in which you wish to be employed, with or without accommodation?

Handicap/Disability:



Subject



(Questions below are unlawful unless asked as part of the Federal I-9 process.)

Are you a citizen of the United States?

Citizenship:

Of what country are you a citizen?

If not a citizen of the United States does applicant intend to become a citizen of the United States?

Whether an applicant is naturalized or a native-born citizen; the date when the applicant acquired citizenship. Requirement that an applicant produce naturalization papers or first papers.

If you are not a United States citizen, have you the legal right to remain permanently in the United States? Do you intend to remain permanently in the United States?



Subject



Whether applicant’s parents or spouse are naturalized or native born citizens of the United States; the date when such parent or spouse acquired citizenship.

(To avoid discrimination based on national origin, the questions above should be asked after the individual has been hired, even if it is related to the Federal I-9 process.)

Citizenship:



Subject



Inquiry into how applicant acquired ability to read, write or speak a foreign language.

Nationality of applicant’s spouse.

Inquiry into applicant’s (a) lineage(b) ancestry(c) national origin(d) descent(e) parentage, or nationality, unless pursuant to the Federal I-9 process.

Inquiry into languages applicant speaks and writes fluently.

National Origin:



Subject



Inquiry into the academic, vocational or professional education of an applicant and the public and private schools attended

Education:

Inquiry into work experience

Experience:

Inquiry into countries applicant has visited



Subject



Address of any relative or applicant, other than address (within the United States) of applicant’s father and mother, husband or wife and minor dependent children

Names of applicant’s relatives already employed by this company?

Relatives:

Are there any felony charges pending against you?

Inquiry regarding arrests which did not result in conviction. (Except for law enforcement agencies)

Have you ever been convicted of a crime?

Arrests:



Subject



List all clubs, societies and lodges to which you belong.

Inquiry into the organizations of which an applicant is a member, excluding names or characters which indicate the race, color, religion, national origin or ancestry of its members.

Organizations:

Name and address of nearest relative to be notified in case of accident or emergency.

Name and address of person to be notified in case of accident or emergency.

Notice in Case of Emergency:



Subject


Mich. Pre-employment Inquiry Guide C12 479 (Rev. 2/92)


Offer Letters

• At-Will Language – Letter should clearly state that an individual is being employed on an at-will basis.

• Conditional Offer – Letter should address whether the offer is contingent upon an individual’s background check, pre-employment drug screen, signing of non-compete, etc.

• Restrictions on Employment – Letter should require the individual to confirm that they are under no restrictions that would prohibit them form accepting employment.


Offer Letters

• Benefits – The offer letter should address two issues:

• Eligibility for benefits is “subject to the terms and conditions of the applicable benefit plans.

• Company reserves the right to modify or terminate benefits.

• Period to Consider Offer – The offer letter should provide for a limited period of time to consider the offer.

• Severance Benefits - If severance benefits are being offered, those benefits should be tied to the signing of a general release by the employee.

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