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Hiring The Right People, While Reducing Your Risk of Liability
Last Newsletter, we shared thoughts and steps for creating job descriptions; a critical first step for hiring the right people. Now that you are clear on the position for which you are hiring, how do you hire the right person for that position without creating liability?

In this Newsletter, you will find the following tips and tools on Hiring:
Coming in our next issues: On-Boarding Employees in a Sustainable Workplace: What Should Your Hiring Documents and Practices Include to Create Clear Expectations That Will Protect Your Company?
Five Steps to Finding the Right People from our Guest Expert Claudia Schwartz
We asked Cláudia Schwartz of HR Results to share her over 28 years of experience on hiring the right people the right way.  Here is a summary of five recommendations to help you protect your workplace and identify candidates who best match your needs.  For a more full explanation of Cláudia's insights click here
1.     Develop a Hiring Profile.  
Use your job description as a foundation to create a hiring profile that will meet your company’s business needs and protect your company from legal liability.  The hiring profile is a combination of pre-defined criteria: “what” (experience, education and technical skills) and “how” (behaviors displayed as the person works and interacts with others). 
2.     Seek Information That Matches Your Hiring Profile
         Screen Sight-Unseen:  With a focus on the "what" and the "how," on the phone or online, ask qualified candidates to give you examples of times in the past when they accomplished the results you expect and displayed the workplace behaviors you desire.  
         Buy Yourself Some “Insurance”:  Respect is one of the most effective “insurance policies” against litigation: build a relationship as though the candidate would become your best employee or customer, while refraining from making promises.
          Use Online Tests with Caution:  Consider using online assessments, but be sure they measure the job-related skills or behaviors required by your hiring profile.  
          Assess Behavioral Patterns, Not Personalities: Ask for examples that show how candidates have learned, unlearned, and relearned in the past.  Notice if the answers reflect a passive and “victim-like” position or reflect accountability and solution-orientation. 
          Look for Contrary Evidence and Reliability:  If you are getting the impression that someone is infallible, ask for an example of failure.  If candidates have one perfectly prepared answer for every question, ask for a second or third example within the same behavioral or achievement category.
3.     Listen and Document
         Listen About 80% of the Interview Time.   Allow for silence.  Don’t “rescue” candidates or feed them what you want to hear. Before giving information to candidates, ask them to describe their understanding of the job, the company, and what success in the position would look like.   
         Take Notes that are Relevant to Your Hiring Criteria:  Avoid writing on the employment application and writing statements related to candidates’ legally protected personal information such as health, family status, or other legally inappropriate questions. 
        Audit Your Documents:  Ensure that language in your recruitment documents and employment application is consistent with legal requirements.  
4.     Compare and Select
         Use Defensible Criteria and Don’t Corner Yourself:  Use the main requirements in your hiring profile as the criteria in any documents created to compare and select candidates.  Avoid using quantitative ratings to compare candidates.  
         Communicate Cautiously:  When gathering input from all who interviewed final candidates, train the interviewers to limit their input to what is job related and justified by business necessity.  Debrief in person or over the phone.  When using email, remember:  “If you digitize, sanitize” because “whatever is digitized never dies.”  
5.     Check the Information You Receive
         Choose the Appropriate Background Check: Background checking is not required by law, but it is a good idea and can reduce your risk of liability, if done mindfully and in compliance with law. 
         Beware of Requirements and Timing, and be Thorough:  Credit checks, criminal background checks, reference checks and health assessments entail a number of legal and best practice requirements, potentially including notices and statements of rights given to candidates.    
         Ask the Candidate:   To supplement reference checks, ask candidates to bring evidence of what they are telling you: for example copies of performance reviews.  
         Limit the Use of Social Media:  Legal parameters are still evolving on how employers access and use online information when considering candidates, so exercise caution. 
Avoiding Liability and Finding the Right Person: 10 Questions You Don't Want to Ask
The most important question to ask yourself, before you put the question to your candidate, is “Is this question going to reveal information that is related to the job we are seeking to fill?”  If not, do not ask it. This simple rule can significantly reduce your risk of liability. 
Remember, it may not be the question itself that creates the liability; when you ask an unlawful question, and the applicant is not selected, the applicant rightfully can ask himself "did I not get the job because I answered that unlawfully asked question?"
Here are ten sample questions you may not and should not ask either in the interview or the application:
1.     Do Not Directly or Indirectly ask an Applicant's Age.  
Both California and federal law prohibit unlawful discrimination on the basis of age (employees age 40 or older).  Unless maximum or minimum age is a bona fide occupational qualification (a "BFOQ"), for example, in the instance of a firefighter, do not ask.  Be wary of questions that indirectly seek the information, like asking for a high school graduation date in your application, since questions like that may an applicants age. 
2.     Do Not Ask About Use of Alcohol or Legal Drugs.  
Questions about alcohol use could reveal that the applicant has an alcohol addiction, and alcoholism is a covered disability under California and federal law.  Also, questions about legal drugs could disclose a medical condition or disability, which you may not explore and which you do not want to know at the applicant stage.  If an applicant tests positive for a controlled substance (post-conditional offer!) then you may ask about their current use of legal drugs.  You may ask about illegal drug use and may drug test, at the offer stage. 
3.     Do Not Ask Whether an Applicant has been Arrested. 
Reliance on arrest records may have a disparate impact on certain groups, and therefore is prohibited by California and federal law.  An employer may and should ask whether an applicant has been convicted of or pled nolo contendre to a crime (except those convictions which have been sealed, expunged or statutorily eradicated, or those convictions for marijuana-related offenses that are beyond two years).  If the answer is yes, you aren't done: the conviction must also be relevant to the job being filled, and the decision not to hire must be justified by business necessity. 
4.     Do Not Ask About Citizenship
It is unlawful to discriminate based on citizenship.  However, an employer may (and should, though more likely in the application than in the interview) ask whether an applicant is authorized to work in the United States.  Of course, if you are covered by a law that mandates or prohibits the employment of people who are citizens of certain countries, then you are permitted to ask. 
5.     Do Not Ask About Credit History, Unless it is Related to the Job in Question. 
In California, applicants also must have an opportunity to consent to a credit check and to receive a copy of the credit information discovered. 
6.     Do Not Ask Whether an Applicant is Disabled, the Applicant's Workers Compensation History, or whether the Applicant needs Reasonable Accommodation. 
California and federal disability laws govern the types of questions an employer may ask applicants, and they are not all intuitive.  To learn more about what you may and may not ask on the subject of disability,  click here
7.     Do Not Ask Any Questions that Reflect an Applicant's Membership in a Protected Category. 
This means do not directly or indirectly ask whether an applicant is married or has children, or an applicant's religion, national origin, race, sex, sexual orientation, transgender status or age, unless it is a BFOQ.   Avoid asking questions that indirectly elicit this information, like questions about weekend or volunteer activities.  
8.     Exercise Caution with Questions about Military Service. 
Preferring applicants with honorable discharge rather than dishonorable discharge has been considered to have an adverse impact on certain races and may be construed as race discrimination.  Federal law prohibits discrimination on the basis of military service.  You cannot ask about military convictions, unless they are job related.  Certainly you may consider the type of experience or education the applicant received in the military as it relates to job for which you are hiring.
9.     Do Not Directly or Indirectly Inquire about National Origin. 
This means avoid questions on lineage, ancestry, native language or birthplace.  Be mindful, too, of language requirements: the refusal to hire because of a foreign accent or lack of facility with English could be construed as national origin discrimination, although the individuals must be able to communicate well enough to perform the job.       
10.     Do Not Ask About Union History or Membership.
The Labor Management Relations Act makes it illegal for employers to discriminate on the basis of union membership.  
Your Turn: Take the Sustainable Workplace Quiz
Read through this short story, and take our quick quiz.
Bonnie applies for a receptionist position with BBGuns, Intl.  Her resume looks terrific, including some great relevant experience.  BB is excited, because the front desk is extremely busy and the company has had difficulty hiring for this position. 
The day before the interview, Bonnie requests that BB provides her with a sign language interpreter for the interview.  
Let's make this more interesting: Bonnie reports to her interview late.  She is in a wheelchair.  She also has a sippy cup in her briefcase. 
The Company is tempted to reject Bonnie, and rely on the rationale that Bonnie does not know Excel . . .     
Quick Quiz: Bonnie and the Accommodations
       1.     Is the Company required to provide Bonnie with a sign language interpreter? 
       2.     Can the Company ask Bonnie any questions about her hearing issues?  What about the wheelchair? 
       3.     Would this be a good line of questions: "Bonnie, I see that you have a sippy cup in your briefcase.  Do you have children?  Will your having children interfere with your ability to report to work on time? 
       4.     What claims could Bonnie raise if the Company decided not to interview or hire her because she does not know Excel? 
To see our thoughts and recommendations, click here.  
How Can We Help?
Above are the steps that you can use to create your Sustainable Interview Process. 
If you would like additional help, we offer the following resources:  
1.     The Sustainable Hiring Review: we are happy to review your existing applications and interview processes, and to make suggested changes to enhance and protect your workplace.
2.     Educating Your Managers to Protect Your Workplace and Hire the Right People: your managers are your best resource for finding the right people; are you confident that they are helping you do that while avoiding liability risks?  We can provide the tools to reduce your risk and increase the likelihood of hiring the right person the first time. 
Give us a call or e-mail Schor Vogelzang & Chung if we can be of any help in this process.  For more information from Cláudia Schwartz, e-mail HR Results
Keep an eye out for next month's newsletter for tips on creating the Sustainable On-Boarding Process. 

Schor Vogelzang & Chung LLP

Partnering to create your great workplace!

2170 Fourth Avenue, San Diego, CA 92101
P: 619.906.2400 F: 619.906.2401


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