1.
Legal Pitfalls of the Hiring Process
Sean O’Donnell - MBA, SPHR
Senior HR Advisor
G&A Partners

2.
Age Discrimination
• Two Electricians Denied Jobs Because They Were Deemed to
Be 'Too Old’ – 4/2013
• ALBUQUERQUE, N.M. - Western Energy Services of Durango, Inc.
(WESODI) has agreed to pay $90,000 and furnish other relief to settle an
age discrimination lawsuit filed by the U.S. Equal Employment
Opportunity Commission (EEOC)…
• …two journeymen linemen electricians, Dennis Thomas (then age 61) and
Eric Camron (then age 72), were referred for WESODI job openings in
northern New Mexico by the IBEW local union in Albuquerque, but the
company rejected the referrals because of the men's ages.
• In each instance, after the referrals were refused, two men in their mid-
twenties were awarded the jobs. Camron and Thomas, as well as the
local union's dispatcher, alleged that WESODI's line superintendent stated
that he was rejecting the referrals because of their ages.

3.
Negligent Hiring
• Reagan et al v. Dunaway Timber Company et al Nov. 2011
• A jury in an Arkansas Federal Court recently awarded $7 million
in damages to the family of an Arkansas truck driver killed in a
2008 accident in a wrongful death lawsuit brought against a
timber company and its truck driver who caused the accident.
• In the case, a group of lawyers serving as counsel for the family
argued that the timber company had negligently hired the truck
driver who caused the accident without conducting a basic
background search that would have quickly revealed a history of
unsafe driving that included having his license revoked twice. The
driver never should have been permitted to drive a tractor trailer,
the lawyers for the family argued.

4.
Criminal Record Discrimination
• Transportation Company Agrees to Maintain Revised Policy Consistent With
Recent EEOC Policy Guidelines; Some 14,000 Employees Affected Nationwide
• LOS ANGELES - J.B. Hunt Transport, Inc., one of the largest transportation
companies in North America, has agreed to settle a race discrimination charge
filed by the U.S. Equal Employment Opportunity Commission (EEOC)…
• …over claims that an African-American job candidate was denied a truck driver
position at a J.B. Hunt facility in San Bernardino, Calif., in 2009 based on a
criminal conviction record, which the EEOC contends was unrelated to the
duties of the job.
• The federal agency also reviewed the company's broader policy with respect to
the hiring of job applicants with conviction records. Blanket prohibitions are not
in accordance with the agency's policy guidance on the subject, which was
reissued on April 25, 2010.
• As part of the five-year conciliation agreement, J.B. Hunt agreed to review, revise
if necessary, and provide additional training concerning its hiring and selection
policies and practices to comply with the EEOC's guidance. The EEOC will
monitor compliance with the conciliation agreement. The alleged victim also
entered into a private settlement agreement with J.B. Hunt.

5.
Immigration Compliance
• United States v. Nebeker, Inc. d/b/a Aire Serv of Northern Utah
– Fine $22,627
• Nebeker, located in Layton, Utah, employs seven employees.
After receiving a Notice of Inspection in September 2010 and
providing the I-9 forms for the last three years, ICE issued a
Notice of Suspect Documents informing Nebeker that three
employees appeared unauthorized for employment. (Those
employees were terminated after they were unable to supply
Nebeker with appropriate employment authorization.)
• ICE also issued an NIF charging Nebeker with 12 violations of the
Immigration Reform and Control Act, including deficiencies in
Sections 1 and 2, acceptance of an invalid List C document;
backdating I-9 forms, and failure to retain I-9 forms for seven
former employees. ICE sought penalties of $22,627 ($1,028.50
per violation) but did not explain how it reached the fine
assessment.

6.
Legal Pitfalls
• Discrimination
• Negligent hiring
• Compliance

7.
The Solution
• Develop a hiring process that is:
• Consistent
• Objective
• Job-related
• Well-documented
• Train everyone involved:
• On the hiring process
• On related background knowledge
• Use the process consistently

8.
Hiring Process Overview
• Job description
• Job posting/applications
• Application screening
• Interviews
• Reference checks
• Contingent offer
• Onboarding
• Drug test
• Background check
• I-9/E-Verify

9.
Job Description
• Used for:
• Setting pay range (and budget),
• Hiring process,
• Managing performance
• Helps you in ADA, discrimination and equal
pay suits
• Use a template

10.
Job Posting/Applications
• Public posting
• Deter some applicants, attract others
• Helps with discrimination issues
• Application form
• Easier to compare applicants
• No missing information
• Ask crucial questions
• Provide disclaimers

11.
Application Screening
• Compare applications to job description for
minimum qualifications
• Screen by consistent, job-related criteria
• Don’t check Google/Social media (yet)
• Consider using a pre-employment screening
test:
• Personality
• Skills
• Keep all applications for 3 years

12.
Interviews
• Have two or more interviewers present,
and/or:
• Do multiple rounds: phone, supervisor, second-
level supervisor
• Prepare questions ahead of time
• Ask same core set of questions to each applicant
• Avoid questions about protected classes
• Hold in an accessible location (ADA)
• When scheduling, be prepared to make
accommodations as needed (ADA)

13.
Legally Protected Classes
• Race
• Color
• National origin
• Sex/Orientation
• Pregnancy
• Disability
• Religion
• Age (40+)
• Genetic information
• Veterans/Military

14.
Reference Checks
• For finalist(s)
• Provided references are biased – check anyway
• Contact former employers
• Contact current employer (only with written
permission)
• Use a Reference Check Form
• Is it worth the time?

15.
Contingent Offer
• Either wait until all the tests are back, or
make the offer contingent on passing:
• Drug test
• Background check
• Employment eligibility (I-9)
• Use an offer letter
• Have the candidate sign it
• Retain in employee file

16.
Onboarding
• On or before the first day of work the
candidate should:
• Sign:
• Drug test form
• Criminal check form
• I-9 (section 1)
• Receive/sign Employee Handbook

17.
Drug Test
• Initiate at time of onboarding
• Especially for safety-sensitive positions
• Authorization form
• Control who sees the results – keep
confidential
• Positive test or refusal to test, grounds for
rescinding offer

18.
Background Check
• Initiate at time of onboarding
• Google/social media check (no passwords)
• Criminal check: basic + county
• Credit check only for financial positions
• DMV check only if driving for job
• Signed authorization and disclosure form
• Assess results on case-by-case basis
• Adverse action procedure
• Send Pre-Notice Adverse Action Letter, copy of
report, FCRA rights
• If not satisfied in 8 business days, send Adverse
Action Notice

19.
Assessing a Criminal Record
• Factors to consider:
• The nature and gravity of the offense
• The facts or circumstances surrounding the offense
• The time that has passed since the offense and/or
completion of the sentence
• The nature of the job held or sought
• The number of offenses for which the individual was
convicted
• Age at the time of conviction, or release from prison
• The individual’s employment history before and after the
offense including the length and consistency of employment
• Rehabilitation efforts, e.g., education/training
• Employment or character references and any other
information regarding fitness for the particular position

20.
I-9/E-Verify
• Initiate at time of onboarding
• Provide list of acceptable documents and
allow them to choose
• Document review/section 2 must be done
within 3 business days of start
• Triggers E-Verify
• E-Verify done by G&A
• Checks SSA and DHS records
• Tentative Non-Confirmations

21.
INTERVIEW QUESTIONS

22.
Interview Strategy
Ability
ManageabilityWillingness
Train
March 2016
Unemployment
USA 5.0%
Texas 4.3%
Utah 3.5%

23.
Review Resume with Candidate
• Learn more about previous positions
• If the applicant was a director:
• How big was the company?
• How big was the department?
• How many direct reports?
• Budgetary authority?
• Ask applicant to explain gaps in employment and
short time in positions
• Find the past employer that is most similar or the
past job that is most like the one you are filling
• Ask what it was like working there
• Did the applicant like it?
• Did the applicant feel successful there?

24.
Behavioral Questions
• Past performance predicting future results
• “Tell me about a time when you…”
• Listen (and ask follow-up questions to find):
• Situation – what happened? Press for a specific
example.
• Action – what did they do?
• Results – how did it turn out?
• “We” did this and “we” did that…
• “To what extent were you personally involved in
that decision/project/situation?”
• “What was your personal contribution to…?”

25.
Situational Questions
• “How would you deal with…?”
• Not usually as powerful as behavioral
questions
• May reveal applicant’s thought process
• Role-plays

26.
Willingness Questions
• What interests you most about this job?
• What interests you most about the company?
• Why are you looking for a change in employment at
this time?
• Why did you leave your last position?
• Caution: It could be for a protected reason such as
disability, pregnancy etc.
• What motivates you?
• How do keep yourself motivated while doing repetitive
tasks?
• How does this position fit into your career goals?

27.
Manageability Questions
• Tell me about your previous managers. Who was
your favorite and why?
• How did a previous manager get the best out of
you?
• If you could give a previous manager some
feedback on something they did not do well, what
would you tell them?
• What do you expect from a manager?
• Have you ever had to work on a project that you
did not have any experience with? How did you go
about it?

28.
Other Question Tips
• Open-ended
• “Are you punctual?” vs “How is your attendance?”
• Implied follow-up
• “What would your last supervisor tell me about your
attendance?”
• Values
• “When is it okay to be late to work?”
• Silence – it’s okay sometimes
• Lou Adler’s most important question
• “What single project or task would you consider the
most significant accomplishment in your career so
far?”

29.
Conduct the Interview
• Greet applicants
• Introduce yourself/other
interviewers
• Break the ice
• Describe the workplace
• Give an overview of the
job
• Show interest in the
applicant
• Ask questions and listen
actively
• Observe closely
• Ask for their questions
• Explain notification
procedure
• Give an expected start
date
• Describe the next steps
• Thank candidates
• Escort them out

30.
Bad Habits
• Answering for the candidate
• Talking too much, not listening enough
• Stereotyping
• “Halo” effect
• “Like me” effect

31.
Interview Notes
• Notes should be factual
• Avoid opinions or personal biases
• Include job-related information only
• Keep notes on file for at least 2 years

32.
HRCI Certification Credits:
"This webinar has been pre-certified for 1 hour of general recertification credit
toward PHR, SPHR and GPHR recertification through the HR Certification Institute.
We will send out a confirmation e-mail to all those that are confirmed as
attended with the program ID code to note on your HRCI recertification
application form.
The use of this seal is not an endorsement by the HR Certification Institute of the quality
of the program. It means that this program has met the HR Certification Institute's
criteria to be pre-approved for recertification credit."
QUESTIONS?
G&A Partners
info@gnapartners.com
(800) 253-8562
*This webinar has been recorded and will be posted on the G&A website by Friday.