HIRING: BEST PRACTICES

AND LEGAL PITFALLS

Drew Bracken

Ahlers & Cooney, P.C.

100 Court Avenue, Suite 600

Des Moines, Iowa 50309

(515) 243-75611

dbracken@ahlerslaw.com

I. JOB DESCRIPTIONS

The single most important document for human resources management s.

The job description should be the touchstone for every decision affecting any individual’s employment including hiring, performance evaluation, discipline, and discharge.

B. Essential Elements.

1. Job Classification.

2. Job Functions or Tasks

3. Job Qualifications and Requirements

4. Working Conditions

II. NOTICE OF VACANCIES - PUBLIC EMPLOYERS

A. Veterans Preference Requirement – Iowa Code Section 35C.1

1. In every public department and upon all public works in the state, and of the counties, cities, and school corporations of the state, veterans are entitled to preference in appointment and employment over other applicants of no greater qualifications.…

2. The application form shall contain an inquiry into the applicant's military service . . . .

3. In all jobs of political subdivisions of the state, public notice of the application deadline to fill a job shall be posted at least ten days before the deadline in the same manner as notices of meetings are posted under section 21.4.

B. Other Internal Requirements

• Union contracts

• Other internal requirements in the form of policy or handbook may exist and should be followed.

III. ADVERTISEMENT

A. Federal Mandates

B. Cast a Wide Net

C. Word-of-Mouth

IV. EMPLOYMENT APPLICATIONS

A. Unsolicited Applications

B. Form and Content

1. Nondiscrimination Policy Statement

2. Personal Information

3. Information Regarding the Job Being Applied For

4. General Information

5. Work Experience

6. Educational experience

7. Verification and Release

V. SCREENING APPLICATIONS

A. Set Deadline for Applications

B. Screening Unqualified Applicants

C. Selecting Interview Candidates

D. Documentation

VI. PRE-EMPLOYMENT INQUIRIES/INTERVIEWS

A. Purposes.

Pre-employment inquiries are designed for one purpose--to elicit information from which an intelligent employment decision can be made.

Questions which are not relevant to the employee selection process should be avoided.

B. Problems Areas

As a general proposition, many inquiries are not unlawful per se.

However, if a negative employment decision is made, the absence of a legitimate reason for making the inquiry can constitute evidence that the employment decision was made with discriminatory intent.

Questions as to race, sex, religion, national origin, or age.

Questions as to marital status, children, child care responsibilities, intentions as to pregnancy or birth control.

Questions as to height, weight, etc.

Questions as to arrest records.

Questions as to economic status such as credit information or prior bankruptcy or garnishments.

Questions about religious views or associations.

Questions about other personal matters.

C. Uniformity to the Review and Interview Processes in Order to Prevent Discrimination Claims

D. Disability Discrimination

At the interview stage (prior to the offer of employment), an employer may not ask any disability-related questions or require any medical examinations, even if they are related to the job.

However . . .

• However, where an applicant has an obvious disability, and the employer has a reasonable belief that he/she will need a reasonable accommodation to perform specific job functions, the employer may ask whether the applicant needs a reasonable accommodation and, if so, what type of accommodation.

The regulations implementing the ADA state that the following questions may not be asked as part of the employment application process:

▸ Have you ever had or been treated for any of the following conditions or diseases? (followed by a checklist)

▸ Have you ever been hospitalized? If so, for what condition?

▸ Have you ever been treated by a psychiatrist or a psychologist? If so, for what condition?

• Is there any health-related reason that you may not be able to perform the job for which you are applying?

• ▸ Have you had a major illness in the past five years?

• ▸ How many days were you absent from work last year because of illness?

▸ Do you have any physical defects which prevent you from performing certain kinds of work? If yes, describe such defects and specific work limitations.

▸ Do you have any disabilities or impairments which may affect your performance in the position for which you are applying?

▸ Are you taking any prescribed drugs?

▸ Have you ever been treated for drug addiction or alcoholism?

▸ Have you ever filed for workers' compensation benefits or had a work-related injury?

E. Preparation and Control of the Process.

Managers, supervisors and other employees who are involved in the interview process or in the process of obtaining reference checks should be trained and required to prepare written outlines/questions in advance that comport with best practices.

VII. SELECTING THE SUCCESSFUL CANDIDATE

A. Evaluating the Applicants

Using the job description as the touchstone, the applicants should be screened following the interview process to determine which candidate is best qualified for the position.

B. Reference Checks.

Reference checks should avoid inquiry into areas that are not job related.

C. Immunity from Civil Claims.

Iowa Code Section 91(B)(2) provides that an employer who provides work-related information about a current or former employee in response to a request made by a person who is believed to be a representative of a prospective employer is immune from civil liability.

D. Criminal Background Checks and other Background Checks.

Employers should also conduct criminal background checks and check other publicly available resources and do so in an organized fashion either internally or through and external contractor.

Information obtained from these sources may be the subject of follow up questions for the applicant.

2. Checks performed by outside contractors.

The Federal Trade Commission (FTC) considers background check information to be a “Consumer report” subject to the requirements of the Fair Credit Reporting Act (FCRA).

When employers use consumer reports to make employment decisions, including hiring, employers must comply with the FCRA.

Before an employer gets a consumer report, the employer must:

a. Tell the applicant or employee that the employer might use information in their consumer report for decisions related to their employment.

b. Get written permission from the applicant or employee.

c. Certify compliance to the company from which the employer is getting the information that the employer:

notified the applicant or employee and obtained permission to get a consumer report;

complied with all of the FCRA requirements; and

will not discriminate against the applicant or employee or otherwise misuse the information.

d. Before an employer rejects a job application or takes any other adverse employment action based on information in a consumer report, the employer must give the applicant or employee:

• a notice that includes a copy of the consumer report relied on to make the decision; and

• a copy of A Summary of Your Rights Under the Fair Credit Reporting Act.

• NOTE: Giving the person the notice in advance gives the person the opportunity to review the report and confirm or deny if it is correct.

E. Disability Discrimination Issues.

If a person who is contacted for a reference check brings up the issue of the applicant’s medical condition or disability,

the hiring employer should state the employer’s commitment to provide a discrimination-free workplace, including the making of reasonable accommodations to disabilities.

VIII. POST-OFFER PRE-EMPLOYMENT CONDITIONS

A. Physical Exams.

Title I of the Americans with Disabilities Act of 1990 (ADA) limits an employer’s ability to make disability-related inquiries or require medical examinations but ….

allows certain post offer inquiries. At this stage of the hiring process (after application is given a conditional job offer, but before he or she starts work), an employer may ask disability-related questions and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.

• The ADA allows certain post offer inquiries. After application is given a conditional job offer, but before he or she starts work, an employer may ask disability-related questions and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.

B. Drug Tests.

1. The Omnibus Transportation Employee Testing Act of 1991 applies only to employees who are required to have a commercial driver’s license for their job.

The test may be administered at any time prior to the first time the employee performs safety-sensitive functions for the employer.

• At the option of the employer, pre-employment testing may be conducted during the hiring process or immediately before the employee begins performing safety-sensitive functions. The pre-employment test may be administered through a third party.

QUESTIONS?