The Ruby Files: A Whisper, A Wink and a 40 Year-Old

Aptitude Flunky

Eric E. Packel, Erin Schilling, Scot Seabaugh, Scott Gilbert

Ruby Recap

1st installment: We met Ruby. 39 years old. Back into workforce. Had some misclassification issues and was involved in DOL investigation.

2nd installment: Ruby developed Carpal Tunnel, migraines. Received warnings. Terminated. Arbitration.

Ruby changes career paths

Decides to utilize her accounting degree. Applies at Community Bank to work in Credit

Administration Department as Underwriter.

Community Bank Application for Employment Form

Community Bank considers all applicants for positions, without regard to race, color, religion, gender, national origin, citizenship, age, disability, marital status, veteran status, or any other similarly protected status. We also comply with all applicable laws governing employment practices and do not discriminate on the basis of unlawful criteria.Federal and state law obligates us to provide reasonable accommodations to the known disabilities of applicants, unless to do so would pose an undue hardship. Please let us know if you need an accommodation to complete the application or interview process, or to perform any essential elements of the position you are applying for.Position Applying for:

Application Date:

Last Name First Name M.I.

Street AddressCity State Zip

E-mail Home Phone Cell Phone Social Security Number

Date available to work: Expected Salary:

Underwriting

March 4, 2016

Breaker Ruby R.

15 Meadow Kansas City MO

rubybreaker@yahoo.com

As much as possible

Yes No

Have you ever been fired or asked to resign from a job?

Have you ever been employed with us before?

If yes, please provide dates of employment: From To

Have you applied with us before?

Are you 18 years of age or older?

Do you have any relatives working for Community Bank?

Are you authorized for employment without restrictions?Proof of citizenship or immigration status will be required upon employment.

Have you been convicted of a felony within the last seven years?

Are you a veteran of the Military Service?

X

X

X

X

X

X

X

X

List below related skills and qualifications acquired from employment or other experiences.

List below any honors, awards or certifications you have received while pursuing your education or during your employment.

EducationSchool Name City & State Did you graduate?

Yes NoHigh School

College

If attended, list course of study and degree received.

Graduate

Registered Nurse – former Unit Supervisor where I planned all monthly plans and ran entire department.

R.N.; numerous monthly awards.

Memorial

State University

Minor accounting

RN

X

Employment HistoryList three employers or assignments, chronologically (most recent first), and with no omissions, including military experience.

Employer Name Address City, State & Zip

General Hospital KCMO

Employer Phone: Your Job Title:Supervisor of Dept.

Dates Employed:2015-2016

Hourly Rate/Salary: Supervisor Name: Reason for Leaving:Lack of challenge

Work Performed

May we contact? Yes No

Ran entire department

Ruby’s Bank Subject to OFCCP

Executive Order (EO) 11246: prohibits discrimination and requires affirmative action to ensure equal employment opportunity without regard to race, color, sex, gender identity, sexual orientation, religion and/or national origin.

Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA): requires government contractors to engage in affirmative action to employ and advance in employment qualified veterans.

Section 503 of the Rehabilitation Act (Section 503): requires affirmative action to employ and advance in employment qualified individuals with disabilities.

6

Background/Credit Checks

Bank concerns pre-employment – criminal convictions involving dishonesty/breach of trust/money laundering:– Nature of crimes– Nature of job– Age of crime– Arrest(s)

FCRA Obligations

If employer uses third party, must comply with FCRA.

FCRA basics:– Separate Disclosure Form– Authorization by Applicant– Pre-Adverse Action/Denial of employment

BSA/PATRIOT ACT

Anti-money laundering programs Bank required to obtain/maintain:– Name, address, d-o-b, ID number.– Records of information in verification process.– Suspected terrorist information.– SAR – “Suspicious Activity Report”.

OFCCP Coverage

Doing business with the federal government– Directly (prime contractor), or– Indirectly through a prime contractor (subcontractor)

Levels of Requirements– Basic coverage for women, minorities (Contract of $10,000 or more)– Basic coverage for individuals with disabilities (Contract of $15,000

or more)– AAP Women and Minorities and Individuals with Disabilities

(Contract of $50,000 or more and 50 Employees)– Basic coverage Veterans (Contract of $150,000 or more)– AAP Veterans (Contract of $150,000 or more and 50 Employees)

11

What is a subcontract?

“Subcontract” is any agreement between the Prime Federal Contractor with a third party 1) to provide goods or services that are, in whole

or in part, NECESSARY TO THE PERFORMANCE of the Prime Federal Contractor’s government contract, OR

2) Under which any portion of the contractor's obligation under any one or more contracts is PERFORMED, UNDERTAKEN OR ASSUMED.

Is the Bank Covered?

Possible federal contracts:SuppliesServices

Financial Institutions Federal fund depositoryPaying agent for U.S. Savings BondsFDIC or NCUA insurance

Big Picture Affirmative Action Requirements for Federal Contractors

Implement Affirmative Action Program EEO Policy/Affirmative Action Policy Request for self-identification List openings with state or local employment agency Training Notice to subcontractors and vendors of Federal Contractor

status Tag line in all employment advertisements VETS-4212 Report EEO-1 Reports

13

EEOC/OFCCP Compensation Collection

EEOC proposed pay data collection February 1, 2016

Comment period ended on April 1, 2016 Employers with 100 or more employees will

have to submit W-2 pay and hours information

Possible implementation 2017

Back to Ruby

Ruby becomes friendly with supervisor in another area.

Ruby “friends” him on Facebook; he accepts.

Emails between Ruby and Another Supervisor

From: Ruby BreakerTo: Tom DeMierSubject: Blond momentHey, can you email me those forms again? I’m having a blonde moment.

From: Tom DemierTo: Ruby BreakerSubject: Blond momentLol. I am attaching them again.

From: Ruby Breaker To: Tom DeMierSubject: Blond momentThanks. I’m gonna have to leave early today…I have to go sweet talk my way out of a parking ticket. Probably an up top pony tail day. Or maybe side pony tail?

From: Tom DemierTo: Ruby BreakerSubject: Blond momentHuh?

From: Ruby BreakerTo: Tom DeMierSubject: Blond momentOh come on! That’s my trick when I play the sweet blond. Put hair in up top or side pony tail!

From: Tom DemierTo: Ruby BreakerSubject: Blond momentLOL. Cute l’il blond huh? “Please give me a break sir”??

From: Ruby BreakerTo: Tom DemierSubject: Blond momentYep!

From: Tom DemierTo: Ruby BreakerSubject: Blond momentI like it!

Birthday Party Conversation

Tom: Enjoying the party?

Ruby: Yeah it’s nice.

Tom: How did the side pony tail work out?

Ruby: Like a charm!

Tom: I shouldn’t say this, but I’d love to see that.

Ruby: Oh yeah?

Tom: Sounds hot.

Ruby: It works! Innocent little ole me.

Tom: Innocent huh?

Ruby: Well…

Tom: Aha! So, are you accepting birthday hugs?

Ruby: Of course!

Tom: You give good hugs.

Ruby: That’s not all!

Tom: We better get back to the party.

Written Warning

Phone conversation between Ruby and Rachel

Rachel: Hey Girl.

Ruby: Hey!

Rachel: When are you going to let me buy you that birthday drink?

Ruby: I don’t know – maybe this weekend.

Rachel: This weekend?! What’s up?

Ruby: Oh Rachel. I got written up.

Rachel: Another reason to have a drink. And why don’t you bring that fine man you have been flirting with.

Ruby: Ehhhh

Rachel: What’s your deal?

Ruby: Happy birthday to me! I told you I got written up! And I don’t know about him.

Rachel: Hmmmmm. You that worried about this write up?

Ruby: Yeah!

Rachel: Hmmmm

Ruby: What?

Rachel: I know what I’d do.

Ruby: What?

Rachel: You like this guy or not?

Ruby: Well, he’s corporate. And I got written up. I don’t know if I trust him.

Rachel: Hmmmm

Ruby: What?

Rachel: Girl. You want to keep your job? Hasn’t he emailed you about being blond?

Ruby: Yeah, and cornered me at my birthday party begging for a hug. Then I had to scram out of the room to get away.

Rachel: Tell HR. Come on girl. I’m just looking out for you.

Ruby: Will something happen to him?

Rachel: Since when did you care about that? You gotta look out for yourself.

Ruby: Hmmmm

Effective Investigations

5 steps to conducting a fair, objective and thorough investigation:

1. Investigation Planning

OVERALL PLANNING Outline issues raised by allegations to determine

investigation scopeGATHER DOCUMENTATION

From complainant: texts, e-mails, calendars, etc. Other: Documents that may corroborate or contradict

witness versions of events: other emails and texts, security swipe reports, telephone records, video, etc.

INTERVIEW PLANNING Identify witnesses & what they are expected to know. Plan order of interviews; typically start with the

complainant. Have a good reason to interview each person to help

maintain confidentiality.

2. Interviewing Witnesses

Explain the purpose of the interview; nature of allegations under investigation.

Identify the role and goal of the investigator: to obtain a complete and accurate understanding of what has happened.

Take thorough notes . Remind the witness about the prohibition on retaliation and the

duty to speak up. Ask open-ended questions. Don’t avoid the difficult questions; but plan a natural lead in to those

questions. Don’t accept generalizations or conclusory responses. Maintain objectivity. Ask the witness to think about any unanswered questions or vague

responses. Invite the witness to provide additional information.

3. Analyze

Compare witness versions of events for inconsistencies. Evaluate credibility; consider witness motivations potentially

impacting credibility. Refer to documents to corroborate or contradict witness accounts. Develop timeline of events. Identify any disputed issues of fact; consider whether further follow-up

would potentially resolve disputed recollections or versions of events. Confront witnesses with any apparent misstatements and

provide an opportunity to correct misstatements.

4. Conclusion

Make a good faith determination of what happened. Identify policy violations. Avoid legal conclusions.

5. Document

Document investigation and findings with report detailing facts and findings.

Consider possible privilege issues. Treat as sensitive and confidential. Be careful to limit audience to protect against possible

retaliation claims later.

Ruby Fails Test

Takes test to advance as Underwriter II Fails; claims adverse impact. Beware of UGESP (Uniform Guidelines on Employee

Selection Procedures).– Concern race, color, religion, sex, national origin.– Apply to tests/selection procedures used as a basis for

employment decisions.– The use of tests /selection procedures which have adverse

impact on hiring, promotion, opportunities of race, sex, ethnic groups considered discriminatory unless procedure has been validated.

The 4/5 rule:– If at least 4/5 (80%) of people tested in a group

pass, not considered an adverse impact.– e.g. 120 people take test– 48/80 white applicants pass– 12/40 minority applicants pass– Less than 4/5 – validity testing needed to show

relation between job and test

Example of Adverse Impact

Recent DOL settlement with Food company. Applicants required to take test measuring skills

in math, locating information and observation. DOL reviewed company data, interviewed people. Exam had adverse impact on hiring minorities. Exam not related to entry level laborers who

inspected products; monitored equipment and maintained sanitation.

$550,000 settlement

Next Time

The Case of the Disappearing Secrets and the Independent Contractor

August 17, 2016

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