Notification to ApplicantEmployee that a Consumer Report M

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PUTTING PEOPLE FIRST THE FIRST NATIONAL
NONPROFIT HUMAN RESOURCES CONFERENCE
June 11th 14th, 2003
Background Checks When, Why And How

• Presented by
• Gina M. Ameci
• [phone]
• E-mail amecigm_at_bipc.com

Pennsylvania New York Washington,
DC Florida New Jersey
Delaware California London
Dublin
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Agenda

• Introduction
• Avoiding Hiring Land Mines
• The Selection and Hiring Process
• Proactive Labor Relations
• Questions and Answers

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Introduction
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Avoiding Hiring Land Mines

• Title VII
• Prima Facie case
• An employee must first make out the elements of
  a prima facie case of employment discrimination
  
• the employee is a member of a protected class
• the employee was qualified for the position in
  which she worked/applied for/wanted to be
  promoted
  

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Avoiding Hiring Land Mines

• the employee was rejected/ terminated/denied
  despite her qualifications (i.e., suffers an
  adverse action)
  
• the defendant-employee continued to seek
  applicants/replaced employee with individuals not
  in protected class and with the same
  qualifications as the plaintiff. (Note that
  replacement of employee with member of same class
  is not a defense to charge of discrimination.)

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Avoiding Hiring Land Mines

• Employer legitimate nondiscriminatory reason
• Pretext
• the discriminatory reason more likely motivated
  the employer, or
  
• that the employers proffered explanation is not
  credible.
  

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Avoiding Hiring Land Mines

• Fraud and Misrepresentation - Hire
• Employee must prove actual and implied
  representation of a material fact
  
• Knowledge of their falsity
• Reckless disregard for truth
• Employer must intend for employee to rely on
  statements
  
• Employee must be ignorant of truth and
  justifiably rely to his injury (detriment) or the
  misrepresentation
  

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Avoiding Hiring Land Mines

• Negligence
• Negligent Hiring
• People injured by the employee who claim that
  the employer should be liable for employees
  conduct because
  
• Employee either negligently failed to conduct
  background checks
  
• Negligently failed to train or supervise

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Job Descriptions

• Job Summary
• Essential Job Functions
• Essential Job Requirements
• Minimum Qualifications

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Determining Qualifications

• Basis of qualifications
• Written job descriptions fundamental

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Fair Credit Reporting Act

• Notification to Applicant/Employee that a
  Consumer Report May be Obtained
  
• In Compliance with Public Law 91-508 (the Fair
  Credit Reporting Act), as amended by Public Law
  104-208 (the Consumer Credit Reporting Reform
  Act) and applicable state law, this notice is to
  inform you that the Company may obtain a consumer
  report or reports in connection with your
  application for employment and for other
  employment related reasons. Consumer reports
  include, but are not limited to, credit reports,
  criminal background checks and Department of
  Motor Vehicle reports.

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Fair Credit Reporting Act

• Authorization to Obtain Consumer Report

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Fair Credit Reporting Act

• Recommended Notification to Applicant/ Employee
  that you are Considering Taking Adverse Action

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Fair Credit Reporting Act

• Recommended Notification to Applicant/ Employee
  of Decision to Take Adverse Action

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Pre-employment Testing

• Consent to Testing For Alcohol and Controlled
  Substances (Drugs)
  
• I hereby VOLUNTARILY CONSENT to the taking of
  samples of my blood, urine, hair, and other
  samples for testing to determine the presence of
  alcohol and controlled substances (drugs) in my
  body. I voluntarily authorize the release of
  medical information concerning the results of the
  tests to _________________ and hospital
  supervisors and management who will use it to
  determine my eligibility or continued eligibility
  for employment. I understand that

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Pre-employment Testing

• refusal by me to sign this consent will
  disqualify me for consideration of employment
  with ___________________ will result in the
  withdrawal of my offer of employment or the
  termination of my employment, if I have been
  employed.
• _____________ ____________________ ________
• Witness Signature Applicant/Employee
  Signature Date

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Pre-employment Testing

• Statement to Decline Testing
• I do NOT authorize ____________________ to
  perform tests for alcohol and controlled
  substances (drugs) in my body. I also understand
  that refusal by me to sign this consent will
  result in the disqualification of my application
  for employment withdrawal of any offer of
  employment or the termination of my employment,
  if I have been employed.
• _____________ ____________________ ________
• Witness Signature Applicant/Employee
  Signature Date

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Pre-employment Testing

• Informed Consent and Release of Liability

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References

• Reference Request Letter
• Attached to this letter is a signed authorization
  and release

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References

• Authorization and Release
• I authorize ____________ Company, its employees,
  and agents to release and provide any necessary
  information from my personnel folder. I,
  _____________ hereby release ________________
  Company, its employees, and agents from any and
  all liability on account of any reason whatsoever
  arising from their giving information about my
  employment history, my academic credentials or
  qualifications and my suitability for employment
  with _________________ Company.

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Employee Profile

• Undesirable Desirable
• Obstinate Integrity
• Rigid Self-confidence
• Critical Flexible
• Complainer Accommodating
• Nontraditional Confidence in authority
• Antiestablishment Traditional values
• Job hopper Open-minded
• Malcontent Pride
• Seniority-oriented Honest

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Interview Question

• Question How do you feel problems at work should
  be resolved?
  
• Profile Effective Communication With respect
  to this
  
• Characteristics answer, it should be determined
  whether the
  
• Elicited candidate can be expected to follow
  __________s internal chain of command and
  communicate effectively with managerial
  personnel. The applicant should express a
  willingness to deal directly with management and
  a confidence in his own ability to present
  personal concerns. Undesirable responses such as
  a formal grievance procedure or by talking to
  a fellow employee indicate an applicant who is
  distrustful of management and feels a need to be
  protected.

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Interview Question

• Question Do you think you should be able to
  criticize management? If so, how do you think
  you should do it?
  
• Profile Characteristics Positive Self-image
  Does the
  
• Elicited applicant demonstrate sufficient
  self-confidence to be able to voice the
  criticisms, concerns, or questions directly with
  management?

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Interview Question

• Respect for Authority When describing the
  manner in which criticism of management should
  occur, does the applicable recognize the need for
  respect of authority and the chain of command?

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Telephone Reference Record

• When contacting previous employers, the first
  contact should be with the personnel office for
  the purpose of verifying employment and dates of
  employment. The next contact should be made
  directly with the applicants supervisor.

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Telephone Reference Record

• It will be important to determine the credibility
  of the person contacted.
  
• If the reference contacts are reluctant to
  provide information, send the reference request
  letter signed by the applicant.

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Telephone Reference Record

• Applicants Name _____________________ Date
  ________
  
• Position Applied for ______________ Checked By
  ________
  
• PREVIOUS EMPLOYERS
• Company ______________________ Telephone
  _________
  
• Contacts Name ___________________________________
  _
  
• Employment dates correct? _________
• If not, what are correct dates?
  _______________________
  
• Job responsibilities correct? _________

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Telephone Reference Record

• Approximate wages verified ? _________
• What were the applicants major strengths? (Does
  he have any positive profile traits?)
  ___________________________
  
• _________________________________________________
  
• What were the applicants major weaknesses?
  (Does he indicate negative profile
  characteristics?) _______________
  
• _________________________________________________
  
• Would the company rehire the applicant?
  _________
  
• If not, why not? _________________________________
  __
  
• _________________________________________________

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Telephone Reference Record

• Does a union represent employees at this work
  location? __
  
• Which union? _____________________________________
  
  
• Try to ascertain from the supervisor whether he
  thinks the applicant would be supportive of the
  Work Philosophy.
  
• ________________________________________________
• ________________________________________________
• How did the supervisor describe the applicants
  job performance and work attitude?
  ______________________
  
• _________________________________________________

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Suggested Interview/Selection Process

• Carefully review all information on the
  applicants employment application
  
• Question the applicant about any gaps in
  employment, regardless of the length of time
  
• Use hiring profile and selected interview
  questions. Do not create unrealistic
  expectations. Dissatisfaction fills the gap
  between expectation and reality.

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Suggested Interview/Selection Process

• Contact each prior employer, not only to verify
  the dates of employment and position the
  applicant held, but also to obtain information
  regarding reliability, insubordination,
  dishonesty, or any other potential problem
  areas.
• Do not consider any applicant who refuses to
  permit you to contact prior employers.

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Suggested Interview/Selection Process

• Document all information received from prior
  employers/references.
  
• If appropriate, confirm whether applicant possess
  up-to-date, valid licenses and/or certifications
  necessary.
  
• Do not offer employment until the screening
  process is complete. Advise that any offer is
  contingent upon successful completion of
  reference checks and, if utilized, medical/drug
  examination.

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Suggested Interview/Selection Process

• Do not rely on employment agencies to check
  references for you do your own checks.
  
• Learn how to control the conversation in an
  interview.
  
• Interviewer should direct the interview so that
  the applicant does most of the talking. Use the
  suggested profile questions.

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Suggested Interview/Selection Process

• The best way to draw applicants into meaningful
  discussions is to ask open-ended questions that
  neither lead the applicants nor suggest the
  answers.
• Control personal bias. Personal identification
  with the interviewer is not a valid performance
  indicator for most jobs. Remain nonjudgmental in
  your reactions to your applicant.

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Suggested Interview/Selection Process

• Create informed, relaxed interview situations
  that will increase the changes that the
  applicants true personality will be revealed.
  
• Recognize that the interview is an opportunity to
  establish a one-on-one relationship with the
  employee at the outset of the work relationship.

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Questions and Answers