HIRING IN PUBLIC SCHOOLS Amy L. De Kok, NDSBA Legal Counsel

Key Hiring Practices Job Descriptions Advertising and Job Postings Application Process Background Checks

State and Federal Laws Applicable to Hiring Practices ND Human Rights Act (NDCC ch. 14-02.4) Title VII of Civil Rights Act of 1964 Pregnancy Discrimination Act Equal Pay Act (federal and state) Age Discrimination in Employment Act of 1967 (ADEA) Americans with Disabilities Act of 1990 (ADA)

JOB DESCRIPTIONS

Developing Job Descriptions Why so important? Determine expectations and needs of employer Outlines job duties Identifies necessary employee qualifications Can help avoid claims of discriminatory treatment Should be reviewed and updated regularly.

Key Elements of Job Descriptions General Purpose of position Position title and location Minimum requirements of position Essential job functions Working conditions

Key Elements of Job Descriptions (Cont.) Management or supervisory responsibilities, if any Preferred qualifications (i.e. years of experience, education, specific work experience) Job expectations (basis for evaluation) “Catch-all” statement (i.e. “perform other reasonable duties as assigned.”)

JOB POSTINGS AND ADVERTISEMENTS

Creating Job Advertisements and Postings Why so important? Provide notice of available positions. Provide a process to recruit most qualified employees. First communication with prospective employees. Internal v. External job postings (see DB board policies).

Content of Advertisements/Postings Position title. Essential job functions (EEOC guidance). Contact person and info. Application deadline/closing date. Skills, education, experience (required or preferred). Pre-testing and post-offer requirements (i.e. drug tests, credit checks, background checks). Equal Opportunity Employer Statement. Notice of Veterans’ Preference. Notice of Indian Preference (if located on or near reservation).

APPLICATION PROCESS

DO’S AND DON’TS OF APPLICATION FORMS DO INCLUDE DON’T INCLUDE Basic personal info Education or training Special skills Work history Criminal conviction info EEO statement Acknowledgment by applicant that info is true and accurate Age Sex/gender Questions re disability/health Martial status Arrest record Race/color Dependent/child care arrangements Religion National origin

CONFIDENTIALITY OF APPLICANT INFO 44-04-18.27. Applications for public employment - Hiring process - Confidential records and open records. If a public entity or any person delegated authority by a public entity to review applications or make hiring decisions receives applications from three or more applicants who meet the minimum qualifications for a vacant position, the public entity or other person shall designate three or more of the qualified applicants as finalists for further consideration before the public entity or other person may issue an offer of employment to fill the position. However, if the public entity or other person does not wish to consider any of the applications further and decides not to make an offer of employment for the vacant position, the public entity need not designate any finalist. The applications and any records related to the applications which contain information that could reasonably be used to identify an applicant are confidential, except records related to finalists are open to the public after the finalists are designated. The public entity or other person reviewing applications on behalf of the public entity shall comply with all requirements for an executive session to discuss confidential applications. If, by the close of the application period for a vacant position, a public entity receives applications from fewer than three applicants who meet the minimum qualifications, the applications and records related to the applications are open to the public.

CONFIDENTIALITY OF APPLICANT INFO (CONT.) Key elements of NDCC 44-04-18.27: Receive 3 or more applications from qualified candidates. ANY position (from Superintendent to classified staff). Must designate 3 or more finalists for further consideration BEFORE offer can be made. If doesn’t want to further consider any candidates, then no need to designate finalists. Applicants identities and any related records are CONFIDENTIAL (business manager is holder and keeper of records!!!) Records relating to finalists are open once designated as such (records of non-finalists remain confidential as long as maintained by district). Board must go into executive session if plan to discuss confidential information or records (see NDCC 44-04-19.2(1)). If fewer than 3 qualified applicants for position, then NOT confidential.

BACKGROUND CHECKS

GENERAL REQUIREMENTS Notice to candidates Written authorization Keep record of background checks performed If required for position, make employment conditional on results Pre-employment v. post offer checks Policies CABB, DBAA, and DBAC and related regs.

PRE-EMPLOYMENT CHECKS Reference Checks Criminal Background Personal and professional. Questions should relate to position applied for. NDCC 34-02-18 provides protection for employers who provide employment related info in good faith; however, BE CAREFUL. NDCC 15.1-06-06(1)(f); required for all individuals having unsupervised contact with students. Attorney General guidance. Conducted through BCI (ND and federal). Procedure for evaluation and use. Conviction(s) CANNOT be absolute bar to employment.

POST OFFER CHECKS Certain checks can only occur AFTER offer of employment made: Alcohol and drug testing Medical examinations WSI records Applicant MUST be informed that offer is conditioned on results of these checks/tests.

ALCOHOL AND DRUG TESTING Employees/positions covered by Omnibus Transportation Employee Testing Act. Safety sensitive positions. All employees? Policies DEAA and DBBA. Marijuana (medical or recreational).

QUESTIONS?

Amy L. De Kok Legal Counsel North Dakota School Boards Association 701-255-4127 1-800-932-8791 amy.dekok@ndsba.org