Jeffery L. Thompson Telephone: Recruiting the Best Crew

Topics That Will Be Discussed EEOC Strategic Enforcement Plan EEOC Strategic Enforcement Plan Interview Dos and Donts Interview Dos and Donts Background Checks, Credit Checks, and the EEOC Background Checks, Credit Checks, and the EEOC

EEOC Strategic Enforcement Plan ADA Targeting (end of leave, essential functions, reasonable accommodations with new technologies, the conversation) ADA Targeting (end of leave, essential functions, reasonable accommodations with new technologies, the conversation) Pregnancy Accommodations (not ADA generally but evaluated differences between how other conditions treated) Pregnancy Accommodations (not ADA generally but evaluated differences between how other conditions treated)

Interviewing Dos and Don’ts

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

Employment Laws Relevant to Hiring Title VII of Civil Rights Act of 1964 Title VII of Civil Rights Act of 1964 Americans With Disabilities Act Americans With Disabilities Act Age Discrimination in Employment Act Age Discrimination in Employment Act Pregnancy Discrimination Act Pregnancy Discrimination Act Fair Credit Reporting Act Fair Credit Reporting Act

EEOC Nationwide Priorities Eliminating Systemic Barriers in Recruitment and Hiring Eliminating Systemic Barriers in Recruitment and Hiring Exclusionary Policies and Practices Exclusionary Policies and Practices Channeling/Steering of Individuals Into Specific Jobs Due to Their Status in a Particular Group Channeling/Steering of Individuals Into Specific Jobs Due to Their Status in a Particular Group Restrictive Application Processes (i.e., pre- employment tests, background screens, date of birth screens and on-line applications). Restrictive Application Processes (i.e., pre- employment tests, background screens, date of birth screens and on-line applications).

Title VII of Civil Rights Act of 1964 Prohibits Discrimination Prohibits Discrimination Race Race Color Color Religion Religion National Origin National Origin Gender Gender Sex (including pregnancy) Sex (including pregnancy)

Title VII of Civil Rights Act of 1964 Enforced By EEOC Enforced By EEOC Violations: Violations: Disparate Treatment Disparate Treatment Disparate Impact Disparate Impact

Age Discrimination in Employment Act (ADEA) Employees 40 and Older Employees 40 and Older Discharged or Demoted Discharged or Demoted Replaced by Person Under 40 Replaced by Person Under 40 Qualified to do Job Qualified to do Job

Americans with Disabilities Act (ADA) “Qualified” Individual “Qualified” Individual With “Disability” With “Disability” Reasonable Accommodation Reasonable Accommodation

Are You Violating the ADA ? Improper Medical Questioning (Pre- Offer Questioning) Improper Medical Questioning (Pre- Offer Questioning) Failure to Maintain Medical Records Properly – Keep Them Separately Failure to Maintain Medical Records Properly – Keep Them Separately Failure to Accommodate Failure to Accommodate Failure to Engage in the “Interactive Process” Failure to Engage in the “Interactive Process” “Regarding” Employee’s As Disabled “Regarding” Employee’s As Disabled

Example of Discrimination Claim Based on Interview

Legal?

Legal?

Proper Hiring Follow Procedures Follow Procedures Do Not Write on Applications Do Not Write on Applications Record Notes on Separate Sheet of Paper Record Notes on Separate Sheet of Paper

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

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 are not related to traits necessary for job performance. Arrest records/conviction for crimes that are not related to traits necessary for job performance. Martial status. Martial status. Pregnancy. Pregnancy.

Things Not To Discuss: Child care problems/parenting responsibilities. Child care problems/parenting responsibilities. Plans to have children/number of children. Plans to have children/number of children. Contraceptive practices. Contraceptive practices. Unwed motherhood or any associated issues. Unwed motherhood or any associated 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: Service and membership in National Guard or Reserve. Service and membership in National Guard or Reserve. Medical conditions (Can obtain information in post-job offer phase). Medical conditions (Can obtain information in post-job offer phase). Submission to polygraph exam. Submission to polygraph exam. Comments about dress, hair length, general appearance. Comments about dress, hair length, general appearance.

Interview Do’s & Don’ts: Please list any diseases for which you've been treated within the past two years. Please list any diseases for which you've been treated within the past two years. Have you ever been hospitalized? If so, for what condition? Have you ever been hospitalized? If so, for what condition? Have you ever suffered any mental impairment or been treated for any mental conditions? Have you ever suffered any mental impairment or been treated for any mental conditions?

EEOC - Criminal Background Checks

Discussion Question #1 Justin has applied for a job at your hospital. His background check shows an eleven year old conviction for resisting arrest and two convictions for writing worthless checks that are five years old. Do you hire Justin?

EEOC’s Position on Criminal Background Checks Uniform Employee Selection Procedures Uniform Employee Selection Procedures Targeted screen considering Targeted screen considering The nature of the crime, The nature of the crime, The time elapsed, The time elapsed, The nature of the job, AND The nature of the job, AND Provides an opportunity for an individualized assessment to determine if job-related and consistent with business necessity. Provides an opportunity for an individualized assessment to determine if job-related and consistent with business necessity.

EEOC and Criminal Background Checks June 11, 2013, EEOC filed 2 suits that received extensive media coverage: June 11, 2013, EEOC filed 2 suits that received extensive media coverage: EEOC v. Dolgencorp dba Dollar General EEOC v. Dolgencorp dba Dollar General EEOC v. BMW Manufacturing Co. EEOC v. BMW Manufacturing Co. Agency has had little success in existing cases. Agency has had little success in existing cases. EEOC v. Peoplemark, Inc.– blanket prohibition on hiring convicted felons. EEOC v. Peoplemark, Inc.– blanket prohibition on hiring convicted felons.

Hot Topic: EEOC on Criminal Backgrounds EEOC sent out new enforcement guidance as of April 25, 2012 EEOC sent out new enforcement guidance as of April 25, 2012 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 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 is concerned with disparate treatment and disparate impact EEOC is concerned with disparate treatment and disparate impact

Example of “Exclusionary Policies/Practices” Credit History Checks

Credit History Can I lawfully check it? Can I lawfully check it? Yes, needs to be job related and consistent with business necessity. Yes, needs to be job related and consistent with business necessity.

Bankruptcy Protection Act Cannot discriminate based on bankruptcy Cannot discriminate based on bankruptcy Applies to hiring, promotions, terminations, etc. Applies to hiring, promotions, terminations, etc.

Compile and Evaluate Data Does the information obtained from the application, resume, and reference checks line up? Does the information obtained from the application, resume, and reference checks line up? Are there any gaps of time which are unaccounted for? Are there any gaps of time which are unaccounted for? Are there inconsistent or irreconcilable accounts? Are there inconsistent or irreconcilable accounts? If an inconsistency exists is it worth exploring further? If an inconsistency exists is it worth exploring further? Prepare a list of questions for interviewing the applicant. Prepare a list of questions for interviewing the applicant.

Other Problematic Areas Promises regarding the job Promises regarding the job Promises regarding length of employment Promises regarding length of employment Keeping applications in desks Keeping applications in desks

Checklist for Interviewing Job Applicants And Avoiding Litigation!

Hiring Checklist: Get a good employment application. Require applicant, in person, to complete all information on application. Get a good employment application. Require applicant, in person, to complete all information on application. Maintain application for no longer than one (1) year. Maintain application for no longer than one (1) year. State on application how long the application is active. Write interview notes separate from application. Don’t use codes. State on application how long the application is active. Write interview notes separate from application. Don’t use codes. Do not take applications unless you have a job position open. Do not take applications unless you have a job position open.

Hiring Checklist: Accurately define the requirements of the job in terms of skills, education, physical requirements, personality, and experience. Accurately define the requirements of the job in terms of skills, education, physical requirements, personality, and experience. Make sure that all questions are job related. Make sure that all questions are job related. Prior to interviewing develop a list of open ended questions. Prior to interviewing develop a list of open ended questions. Conduct a thorough background check. Conduct a thorough background check.

Hiring Checklist: Avoid telling applicants that they are hired during interview. Don’t extend offers over telephone. Avoid telling applicants that they are hired during interview. Don’t extend offers over telephone. Review orientation checklist, work rules and requirements of employment prior to hiring and get commitment from applicant to follow your policies. Review orientation checklist, work rules and requirements of employment prior to hiring and get commitment from applicant to follow your policies. Never promise applicant employment for a “fixed length” of time, discharge of cause or anything else that could undermine employment “at-will.” Never promise applicant employment for a “fixed length” of time, discharge of cause or anything else that could undermine employment “at-will.”

Final Thoughts  It Starts At Home - Lilly Tomlin