Parsons Behle & Latimer Employment Law Seminar - Boise, Idaho - October 19, 2017

1. Annual Idaho Parsons Behle & Latimer Employment Law Seminar
MINIMIZING RISK IN HIRING
Susan Baird Motschiedler
801.536.6923
smotschiedler@parsonsbehle.com
www.parsonsbehle.com
THURSDAY OCTOBER 19, 2017 | BOISE CENTER EAST

2. 2
 Cannot completely eliminate employment legal risks
– Employees = legal risk
 Minimize risk throughout employment period:
– Addressing most common mistakes in hiring
– Training
– Consistency in hiring practices
Minimizing Risk in Hiring

3. 3
 Everyone involved in hiring process should receive
training:
– Title VII, ADA, ADEA training
– Nuts and Bolts of Interviewing
– How to properly conduct background and reference checks
– Training on your policies and benefits
• Leave, seniority, vacation, policies
• Where Company doesn’t have policies (ex. – too small for FMLA)
– Following procedures for every hire
#1: Failure to Train/Plan

4. 4
 Have a Hiring Plan specific for each position
– Define and control the process
– Gather all required information
– Provide information to people who need to know
– Decrease chance for illegal bias or mistakes
 Compare to Broader Company Plans
– EEO Plan, Growth Plan, 5 year Plan, Strategic Plans, etc.
#1: Failure to Train/Plan (cont.)

5. 5
Hiring Plan:
Create Job Description
 Prepare the Job Description
 Classify the Job/Define Salary Range
Vacancy Announcement
 Obtain Initial Approval to Post
 Prepare and Post the Vacancy Announcement
Recruitment Plan
Screening Process
 Develop Screening Criteria
 Screen Cover Letters, Applications, and Resumes
#1: Failure to Train/Plan (cont.)
Structured Interview
 Guidelines for Structured Interviews
 Convene and Interview Panel
 Prepare Interview Questions
 Sample Questions
 Develop the Rating Process
 Conduct First Round of Interviews
 Conduct Second Round of Interviews
Final Selection
 Check References/Background Check
 Recommend a Candidate for Hire
Approval Process
 Final Approvals for Different Job
Levels

6. 6
 Risks:
– Questions that seek protected status information or that are
based on protected status
• Sex, religion, gender, marriage status, age, disability, etc.
– Blatantly discriminatory statements
• “It would sure be nice to have a pretty face to look at”
– Questions or comments that could create a contract or imply
something besides at-will employment
#2: The Interview

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 Training to Avoid Risk:
– Non discriminatory job posting
• “Wanted: recent college grad” or “youthful, high energy applicant”
– Standard Application
• Everybody fills out the same application and provides the same
information
– Standard Questions
• Everybody gets the same questions
• Individualized follow up on specific answers = appropriate
– Review questions that inexperienced interviewers will ask
#2: The Interview (cont.)

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 Forbidden Questions:
– ADA
– Age
– Race/National Origin/Gender/Marriage Status/Sexual Orientation
 Forbidden Assumptions:
– Will need an accommodation
– Cannot accommodate applicant (ADA, Religion, etc.)
 Focus: Is this applicant qualified to perform essential
functions of job?
#2: The Interview (cont.)

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 Okay or Not:
– That’s an interesting last name, what is its origin?
– I looked at your [social media] profile pictures from the beach – wow you
were dark, what is your ancestry?
– You have an accent, do you speak another language?
– Are you married?
– Do you plan to have kids?
– I see you walk with a cane, how did you injure your leg?
– Will you need to pray 5 times a day?
#2: The Interview (cont.)

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 Okay or Not:
– Do you think you could take direction from a younger supervisor?
– Can you work overtime and on weekends?
– You just moved here, what church do you go to?
– Have you been convicted of a crime?
– Oh, you have young children. Do you have family who will take care
of them when they are sick?
– I see you are wearing a wedding ring, what does your husband do?
#2: The Interview (cont.)

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 Additional Training points:
 How to take notes regarding the candidate
– “black guy w/ dreds”
– “old guy - IL/worked @ Lafayette bank”
– “articulate/familiar with Ruby/build computer when 6”
 At-will employment doctrine
– “Do well in your first year and you will be promoted”
– “You will have a long career here”
#2: The Interview (cont.)

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 Risk: Hiring a less or equally qualified person based on
“cultural fit.”
 What is the problem?
– Allows interviewers to act on their biases
• Want to hire people who are “like us” (i.e. in race, sex, religion, gender)
#3 Stressing “Fit” Over Qualifications

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 Solutions:
– Define what the company “culture” is that is important
– Define objective criteria (not “fun to hang out with”)
– Have a hiring committee to evaluate candidates against set criteria
– Define what the company “culture” is that is important, what
company wants to continue
#3 Stressing “Fit” Over Qualifications
(cont.)

14. 14
 Solutions (cont.):
– Challenge the culture: discriminatory in practice?
• “Fun place to work” might mean “fun single white guys like me who go out to
drink after work” and result in no hiring of Muslims or LDS because of
traditional shunning of alcohol
• “Energetic place to work” might mean “no one over 40”
• “Outdoor enthusiasts” might mean “fully abled recreationists only”
– Identify objective criteria:
• Smart (grades), outdoors enthusiast (wheelchair enthusiasts welcome!),
community oriented (as demonstrated by volunteer work)
– Evaluate/compare candidates using set and known criteria
#3 Stressing “Fit” Over Qualifications
(cont.)

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 ADA concerns
– Essential Function of the Job
 Title VII concerns
– Hired a less skilled male person over female
– Other qualifications that are harder to measure
• Why male got promoted and not female
– Pay scale
 FLSA concerns
– exempt vs. non-exempt; Employee vs. independent contractor
#4 Job Description

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 Job Description
– Job title and job grade or category, if any
– Minimum qualifications or requirements
– Responsibilities and essential job functions
– Critical success indicators
– Formal reporting structure
– Dangers of the job environment
#4 Job Description (cont.)

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 Job Description considerations:
– ADA: have we really listed all of the essential job functions?
• Physical
• Mental
• Verbal
• Written
– Additional Preferred Qualifications: not required, will hire employee with preferred
qualifications
– Supervisory Responsibilities: have we established the necessary reports to qualify for
exemption we are relying on?
– Work Environment Characteristics: pace of the workplace, daily schedule, is there
travel involved
– Accurate? Is it a fluid position that might change?
#4 Job Description (cont.)

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 Improper classification of employees:
– Employee vs. Independent Contractor
– Exempt vs. Non Exempt
 Matters for:
– Overtime
– Benefits (vacation, sick days, etc.)
– Workers’ Comp and Unemployment benefits
– Disciplinary Actions
– Training
– Getting audited by state of federal agencies
#5 Misclassification

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 Unintentional modification of at-will employment:
“We are happy to offer you the position of Manager of
Expectations. In this position, you will be paid an annual
salary of $75,000. Your job duties will be the following . . .”
#6 Offer Letter

20. 20
 Best practice regarding at-will employment:
“We are happy to offer you the position of Manager of
Expectations. Your employment with Company is at will, which
means either you or Company can terminate your employment at
any time and for any reason or no reason at all. You will be paid
$3,125 every other Friday beginning June 1, 2017. Your job
duties will generally be as follows, though Company reserves the
right to modify or change your job duties to comply with
Company’s business needs.”
#6 Offer Letter (cont.)

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 Commissions or Bonus Plans
– Refer to a freestanding and separate document, as may be
changed from time to time
OR
– Carefully lay out commission/bonus plans, including charge
backs, length of time to determine and make payment, when
share, whether discretionary, etc.
 Benefits and Vacation
 Subject to change with notice
#6 Offer Letter (cont.)

22. 22
 No blanket ban on hiring people with convictions
– There must be some nexus between the crime and the position
– Time decreases recidivism rate; employment decreases it more
• 7 years after conviction or release from incarceration
 Arrests vs. Convictions
#7 Background Check

23. 23
 Implementation of Background Checks for only certain
applicants
• It is illegal to check the background of applicants and employees
when that decision is based on a person's race, national origin,
color, sex, religion, disability, genetic information (including family
medical history), or age (40 or older). For example, asking only
people of a certain race about their financial histories or criminal
records is evidence of discrimination.
#7 Background Check (cont.)

24. 24
 Implementation of Background Checks for only certain
applicants
• It is illegal to check the background of applicants and employees
when that decision is based on a person's race, national origin,
color, sex, religion, disability, genetic information (including family
medical history), or age (40 or older). For example, asking only
people of a certain race about their financial histories or criminal
records is evidence of discrimination.
https://www.eeoc.gov/eeoc/publications/background_checks_employers.
cfm
#7 Background Check (cont.)

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 Failure to verify criminal history information
– Discrimination problem – not the applicant’s record
– Problem for the company (more serious crime than report shows)
 Failure to inform the applicant that a decision was based
on criminal background
 Failure to verify other information
– Resume
– Job History
– References
#7 Background Check (cont.)

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 Goal = Protect Company Information
– Accurately identify/define what is confidential
– Identify what employees can/cannot do with the information
– Make sure employees don’t take it with them
#8 Confidentiality Provisions

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 Accurately identify/define what is confidential
– Not everything is confidential
– Stating “Confidential Information” and listing broad categories is
not enough
– Take time and identify what your company treats as confidential
• Customer lists, ingredient lists, proprietary processes, pricing structure,
negotiations, formulas, methods, etc.
– Make sure you treat it as confidential
• Password protect/label/lock and key/limit access/etc.
#8 Confidentiality Provisions (cont.)

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 Example of mediocre definition:
“Confidential Information means all private or confidential
company information in any form, including, but not limited to,
employee data, customer data, lists, reports, financial
information, patents, trademarks, copyrights, etc.”
#8 Confidentiality Provisions (cont.)

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 Example of better language:
Confidential Information includes proprietary information not publicly available such as
trade secrets, ingredients list, recipes (unless officially published by Company),
business marketing plans, sales forecasts, sales reports, engineering ideas or plans,
experiment or research plans or results, unpublished designs and drawings, employee
records, salary or pay information (unless provided by employee whose information is
at issue), and unpublished financial data and reports, as well as any other non-public
company or customer information that might be of use to competitors or harmful to us
or our customers. The above list is not exhaustive and Confidential Information also
includes information marked as confidential or proprietary or that would otherwise
appear to a reasonable person to be confidential or proprietary in the context and
circumstances in which the information is known or used.
#8 Confidentiality Provisions (cont.)

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 Identify what employees can/cannot do with the
information
– Thumb drive
– Print
– Define different levels of intercompany access
– Mobile devices
– Laptops
– Password protect
– Shred before disposing
#8 Confidentiality Provisions (cont.)

31. 31
 Make sure employee doesn’t take it upon exit
– What things an employee is expected to return
• Laptop
• Cellphone
• Thumb drives
• Customer lists
• All printed materials from the company
– Sign notarized declaration that have returned everything
• Reasonable steps to determine employee has searched for everything
• Forensic search of work computer to determine when copied
#8 Confidentiality Provisions (cont.)

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THANK YOU!
 Susan Baird Motschiedler
801.536.6923
smotschiedler@parsonsbehle.com