The Employment Process Screening, Interviewing, & Hiring

The Employment ProcessScreening, Interviewing, & Hiring Personnel Administrators of North Carolina Conference October 7, 2013

Before we begin . . . SB 91 • (c) Employer or Educational Institution Inquiry Regarding Disclosure of Expunged Arrest, Criminal Charge, or Conviction. An employer or educational institution shall not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose information concerning any arrest, criminal charge, or criminal conviction of the applicant that has been expunged and shall not knowingly and willingly inquire about any arrest, charge, or conviction that they know to have been expunged. An applicant need not, in answer to any question concerning any arrest or criminal charge that has not resulted in a conviction, include a reference to or information concerning arrests, charges, or convictions that have been expunged.

SB 91 • (d) State or Local Government Agency, Official, and Employee Inquiry Regarding Disclosure of Expunged Arrest, Criminal Charge, or Conviction. Agencies, officials, and employees of the State and local governments who request disclosure of information concerning any arrest, criminal charge, or criminal conviction of the applicant shall first advise the applicant that State law allows the applicant to not refer to any arrest, charge, or conviction that has been expunged.

SB 91 • Can easily add this language to any internal applications:. • Two Locations: • Section inquiring about charges, arrests, convictions: “In accordance with State law, you are not required to disclose any arrest, charge, or conviction that has been expunged from the public record.” • Legal Release at End of Application: “I understand that I am not required to disclose any arrest, charge or conviction that has been expunged from the public record.”

SB 91 • May still inquire about criminal charges, arrests, or convictions not expunged from the public record • What to look out for: • States have different rules for expunging records • This would not include charges or convictions in the process of being expunged • $500 civil penalty for non-compliance

Use of Criminal Background Checks in the Hiring Process • 115C-332 allows District to conduct criminal background check (at no cost to applicant) • Must be done uniformly • A 3rd Party agency may be used, but requires compliance with Fair Credit Reporting Act. • BOE will determine whether results indicate applicant: • Poses a threat to the physical safety of students or personnel; or • Has demonstrated that he or she does not have the integrity or honesty to be a school employee

Use of Criminal Background Checks in the Hiring Process • These crimes include: • Endangering Legislative and Executive Officers • Rape • Assaults • Kidnapping • Malicious Injury by Bomb • Burglary • Arson • Embezzlement • False Pretense • Fraud • Forgery • Offense against public Morality/Decency • Violation of Adult Establishment Laws • Prostitution • Riots/Civil Disorder • Offenses Against Minors • Possession/Sale of Drugs • Driving While Impaired • Selling Alcohol to Minors

Recent EEOC Guidance • In 2012, the EEOC adopted new guidance on how criminal background checks and how the use of such checks may result in a disparate impact based on race and national origin. • Title VII also prohibits the use of background /criminal checks to intentionally discriminate against applicants (Disparate Treatment) • http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf

Example 1: Disparate Treatment Based on Race. John, who is White, and Robert, who is African American, are both recent graduates of State University. They have similar educational backgrounds, skills, and work experience. They each pled guilty to charges of possessing and distributing marijuana as high school students, and neither of them had any subsequent contact with the criminal justice system.

Example 1 continued After college, they both apply for employment with Office Jobs, Inc., which, after short intake interviews, obtains their consent to conduct a background check. Based on the outcome of the background check, which reveals their drug convictions, an Office Jobs, Inc., representative decides not to refer Robert for a follow-up interview. The representative remarked to a co-worker that Office Jobs, Inc., cannot afford to refer “these drug dealer types” to client companies. However, the same representative refers John for an interview, asserting that John’s youth at the time of the conviction and his subsequent lack of contact with the criminal justice system make the conviction unimportant.

Example 2: Disparate Treatment Based on National Origin. Tad, who is White, and Nelson, who is Latino, are both recent high school graduates with grade point averages above 4.0 and college plans. While Nelson has successfully worked full-time for a landscaping company during the summers, Tad only held occasional lawn-mowing and camp-counselor jobs. In an interview for a research job with Meaningful and Paid Internships, Inc. (MPII), Tad discloses that he pled guilty to a felony at age 16 for accessing his school’s computer system over the course of several months without authorization and changing his classmates’ grades. Nelson, in an interview with MPII, emphasizes his successful prior work experience, from which he has good references, but also discloses that, at age 16, he pled guilty to breaking and entering into his high school as part of a class prank that caused little damage to school property. Neither Tad nor Nelson had subsequent contact with the criminal justice system.

Ex. 2 Continued The hiring manager at MPII invites Tad for a second interview, despite his record of criminal conduct. However, the same hiring manager sends Nelson a rejection notice, saying to a colleague that Nelson is only qualified to do manual labor and, moreover, that he has a criminal record. In light of the evidence showing that Nelson’s and Tad’s educational backgrounds are similar, that Nelson’s work experience is more extensive, and that Tad’s criminal conduct is more indicative of untrustworthiness, MPII has failed to state a legitimate, nondiscriminatory reason for rejecting Nelson.

Disparate Impact • In a disparate impact claim, the EEOC/Court will look at the following relevant information: • Policy and Procedures • Which offenses were reported • Whether convictions arrests or other charges are reported • The timeline of reported offenses • Which positions have criminal background checks

From the Guidance • In 2012, 28% of all arrests were African-Americans, despite African Americans only make up 14% of the population • In 2008, Hispanics were arrested on federal drug charges 3 times more than the general population • Both groups were more likely than Whites to be arrested, convicted or sentenced for drug offenses even though their rate of drug use is similar to Whites

Job Related and Business Necessity • Employer validates the criminal conduct exclusion (best practices) • Employer develops a targeted screen considering the nature of the crime, the time elapsed, and the nature of the job. • Policy provides an opportunity for an individualized assessment to determine if policy is consistent with business necessity

Job Related and Business Necessity • The burden shifts to the employer to demonstrate “job related and business necessity.” • One Court used these three factors (the Green factors) • Nature and gravity of the offense • The time that has passed • The nature of the job

Using Arrest records • Example 3: Arrest Record Is Not Grounds for Exclusion. • Mervin and Karen, a middle-aged African American couple, are driving to church in a predominantly white town. An officer stops them and interrogates them about their destination. When Mervin becomes annoyed and comments that his offense is simply “driving while Black,” the officer arrests him for disorderly conduct. The prosecutor decides not to file charges against Mervin, but the arrest remains in the police department’s database and is reported in a background check when Mervin applies with his employer of fifteen years for a promotion to an executive position. The employer’s practice is to deny such promotions to individuals with arrest records, even without a conviction, because it views an arrest record as an indicator of untrustworthiness and irresponsibility.

Using Arrest Records • If Mervin filed a Title VII charge based on these facts, and disparate impact based on race was established, the EEOC would find reasonable cause to believe that his employer violated Title VII. • Employer may use the underlying conduct as a reason to deny promotion if it makes the individual unfit for the job

EEOC gave us this example . . . • Example 4: Employer's Inquiry into Conduct Underlying Arrest. • Andrew, a Latino man, worked as an assistant principal in Elementary School for several years. After several ten and eleven-year-old girls attending the school accused him of touching them inappropriately on the chest, Andrew was arrested and charged with several counts of endangering the welfare of children and sexual abuse. • Elementary School has a policy that requires suspension or termination of any employee who the school believes engaged in conduct that impacts the health or safety of the students. After learning of the accusations, the school immediately places Andrew on unpaid administrative leave pending an investigation. In the course of its investigation, the school provides Andrew a chance to explain the events and circumstances that led to his arrest. Andrew denies the allegations, saying that he may have brushed up against the girls in the crowded hallways or lunchroom, but that he doesn’t really remember the incidents and does not have regular contact with any of the girls. The school also talks with the girls, and several of them recount touching in crowded situations. The school does not find Andrew’s explanation credible. Based on Andrew’s conduct, the school terminates his employment pursuant to its policy.

Andrew challenges the policy as discriminatory under Title VII. He asserts that it has a disparate impact based on national origin and that his employer may not suspend or terminate him based solely on an arrest without a conviction because he is innocent until proven guilty. • After confirming that an arrest policy would have a disparate impact based on national origin, the EEOC concludes that no discrimination occurred. The school’s policy is linked to conduct that is relevant to the particular jobs at issue, and the exclusion is made based on descriptions of the underlying conduct, not the fact of the arrest. • The Commission finds no reasonable cause to believe Title VII was violated.

Example 5: Exclusion Is Not Job Related and Consistent with Business Necessity. Your Bank has a rule prohibiting anyone with convictions for any type of financial or fraud-related crimes within the last twenty years from working in positions with access to customer financial information, even though the federal ban is ten years for individuals who are convicted of any criminal offense involving dishonesty, breach of trust, or money laundering from serving in such positions. Sam, who is Latino, applies to Your Bank to work as a customer service representative. A background check reveals that Sam was convicted of a misdemeanor for misrepresenting his income on a loan application fifteen years earlier. Your Bank therefore rejects Sam, and he files a Title VII charge with the EEOC, alleging that the Bank’s policy has a disparate impact based on national origin and is not job related and consistent with business necessity. Your Bank asserts that its policy does not cause a disparate impact and that, even if it does, it is job related for the position in question because customer service representatives have regular access to financial information and depositors must have “100% confidence” that their funds are safe.

However, Your Bank does not offer evidence showing that there is an elevated likelihood of committing financial crimes for someone who has been crime-free for more than ten years. After establishing that the Bank’s policy has a disparate impact based on national origin, the EEOC finds that the policy is not job related for the position in question and consistent with business necessity. The Bank’s justification for adding ten years to the federally mandated exclusion is insufficient because it is only a generalized concern about security, without proof.

Where to go from here . . . • Establish a sound policy that: • demonstrates how criminal background checks are job related to working with or around children; • There is no automatic exclusion – basically an independent analysis is used to determine whether applicant is fit for the position • Identify which criminal offenses apply • Determine the duration, if any, that will be used • See NCSBA Policy

Where to go from here . . . • Because most background checks are performed on a finalist only, perform an individualized assessment of the conviction to determine whether the charge meets the standards in your policy • Give the candidate an opportunity to explain • For arrests or charges with no conviction – look to the underlying conduct and inquire with the candidate • Train Principals and HR Staff to follow policy • Be on the look out for more cases in this area of the law

Interviewing

IT SEEMED LIKED A GOOD QUESTION TO ME? The following questions are examples of those innocent sounding questions that could lead you into hot water! • I see you went to _____________University. My son went there as well. What year did you graduate? • You have an absolutely beautiful accent. Where were you born? • I see you speak Spanish. That is excellent. We need someone who can speak Spanish fluently given the large Hispanic population here in town. Is Spanish your native language? • This is a wonderful community to raise a family. That is one of the reasons why I decided to come here myself. My children just love it here. You and your husband have been married for a few years now, right? Do you plan to have children? • Do you have any health issues that we should know about? • I understand that you are new to the community. Have you joined a church or any other organization in town? • Are you currently on any medications? • Who do you live with?

PRACTICE TIP – Basic Hiring Procedure • - Request sent through appropriate approvals for posting position. • - HR works with supervisor to update job description and look at qualifications. • Position is posted. Typically internally, webpage, job banks, ESC and possible newspaper. • Have a diverse committee that is made up of supervisor, representative from department, another which works closely with position and someone who does not work closely with department or position. • Have pre-selection committee meeting to review legalities, confidentiality and scope of position. • Once position is closed HR scans application packets for completeness and qualifications. Then each committee member reviews them individually. Ranking is excellent, good, fair and poor. Also on form is place for comments. Note – Comments should be about applicants’ qualifications.

Basic Hiring Procedure Continued • Once all members have reviewed, the rankings are compiled and then the committee comes together again to discuss top candidates to interview. • The committee comes up with the top two recommendations or selections (whichever is appropriate). • HR begins checking references of top candidate. If a red flag comes up we begin checking on the second candidate. Note – supervisor may also check references. • Once reference checks are complete, move forward with final process • Determine Salary • Make an offer

PRACTICE TIP – SAMPLE BASIC QUALIFICATION IN JOB POSTING When Too Much is Too Much? MINIMUM QUALIFICATIONS OR STANDARDS REQUIRED TO PERFORM ESSENTIAL JOB FUNCTIONSPhysical Requirements: Must be physically able to sit, stand, walk and drive. Must be able to lift boxes up to 10 pounds. Physical demand requirements are for Light Work. Data Conception: Requires the ability to compare and/or judge the readily observable, functional, structural or composite characteristics (whether similar or divergent from obvious standards) of data, people or things. Interpersonal Communication: Requires the ability to speak and/or signal people to convey or exchange information. Includes giving instructions, assignments or directions to subordinates or assistants. Intelligence: Requires the ability to apply common sense understanding to carry out instructions furnished in written, oral or diagrammatic form; to deal with problems involving several concrete variables in or from standardized situations. Verbal Aptitude: Requires the ability to record and deliver information, to explain procedures, to follow oral and written instructions. Must be able to communicate effectively and efficiently in standard English. Numerical Aptitude: Requires the ability to utilize mathematical formulas, to add, subtract, divide and multiply. Form/Spatial Aptitude: Requires the ability to inspect items for proper length, width and shape. Motor Coordination: Requires the ability to coordinate hands and eyes rapidly and accurately in using computers and other technology. Manual Dexterity: Must have minimal levels of eye/hand/foot coordination. Color Discrimination: Requires the ability to differentiate between colors or shades of color. Interpersonal Temperament: Requires the ability to deal with people beyond giving and receiving instructions. Must be adaptable to performing under average levels of stress. Physical Communications: Requires the ability to see, talk and hear.

Checking References • Failure to Check References is the biggest mistake employers make. • Three types of references – the positive, neutral and negative. • Be on the lookout for the not-so-neutral reference . • When receiving a neutral or evasive reference, ask the employer if the applicant would be eligible for rehire.

Questions

The Employment Process Screening, Interviewing, & Hiring