HIRING PRACTICES: Protecting Your Company

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HIRING PRACTICESProtecting Your Company

• Gary W. Auman
• Stephen A. Watring
• DUNLEVEY, MAHAN Furry
• 110 North Main Street, Suite 1000
• Dayton, Ohio 45402
• saw_at_dmfdayton.com
• gwa_at_dmfdayton.com

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• IMMIGRATION LAW

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Pre-Hire (Application, Interview, Etc.)

• Do Ask- Can You Legally Work In The United
  States?
• Dont Ask- Are You A United States Citizen? (Or
  Similar Questions)

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Post-Hire

• I-9s- Employers Must Require And Maintain
  Completed I-9 Forms For All Employees Hired On Or
  After 11-6-86
• Social Security Number Match Check
• www.ssa.gov/employer/ssnv.htm
• Optional
• Helps detect illegals before hiring/shows good
  faith efforts
• Document check results
• Discriminatory to do selectively
• Only do match check if it will change hiring
  decision

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I-9 Requirement

• Applies To Union And Merit Shops
• No Exception For Hiring Hall Referrals
• Union Can Undertake Responsibility, But
  Contractor Is Responsible For Non-Compliance
• Limited Exception-Employment By More Than One
  Union Contractor In Same Multi-Employer Unit Can
  Be Considered Continuous Employment
• Agent (Association) may keep I-9 form for all
• Agent must keep record of each hire and
  termination date
• Safer For Each Employer To Assume Own I-9
  Responsibility

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I-9 Compliance

• If You Have Hired Employees Without
  I-9s-Correct It Now
• Start Requiring I-9s In The Future

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Tips For I-9 Completion

• Do With Other Pre-Hire Paperwork, Such As W-4,
  Before Employee Starts
• Inspect And Copy IDs
• Assure All Portions Of Form Legibly Completed And
  Signed
• Cross-Check Application With IDs
• If Alien Documentation Has Expiration Date,
  Calendar For Re-Verification

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Liability

• Properly Completed I-9 Is First And Best Defense
  If Unknowingly Hire Illegal Alien
• Company with I-9's normally is not cited or fined
  
• Company normally is not held responsible absent
  knowledge of illegal status
• A good faith effort to comply is key
• One illegal is unlikely to result in liability
• Multiple illegals and day hiring practices may
  raise suspicions

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Other Consequences

• I-9s Will Not Protect Illegal Workers
• I-9s Will Not Protect Company From
• Raid
• Workforce loss
• Investigation
• Adverse publicity

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• NEW HOMELAND SECURITY REGULATIONS

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Immigration And Nationality Act

• Existing Law-Unlawful To Continue To Employ Alien
  Knowing The Alien Is (Or Has Become) Not
  Authorized For Employment

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Final Rule Issued 10-23-08

• Knowledge Includes Constructive Knowledge
• No properly completed I-9
• Failure to take reasonable steps after receiving
  information that alien not authorized for
  employment, such as
• Employee request for employer to file labor
  certification or employment based visa
• Notice from Homeland Security
• Social Security No-Match letter
• Note-examples only
• Unsubstantiated suspicion not enough, but
• Cant just look the other way

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No-Match Letters

• Letter From Social Security Administration
  Stating Employee Name And Social Security Number
  Do Not Match
• Regulation Establishes Safe Harbor From Liability
  If Employer Follows Procedures

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Upon Receipt Of No-Match Letter-Safe Harbor
Procedures

• 30 Days To Confirm Mismatch Is Not Clerical Error
• If so, correct error with SSA
• No Clerical Error
• Request employee confirm name SSN
• If incorrect, correct error with SSA
• If employee confirms info is correct
• Employee has 90 days from receipt of no-match
  letter to resolve discrepancy with SSA

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Discrepancy Not Resolved Within 90 Days Of
Receipt Of No-Match Letter

• 3 Days To Verify Work Eligibility With New I-9
  Form And Restricted Document List
• Without I-9 verifying work eligibility
• Terminate employee
• Face potential penalty/consequences
• Practical result
• Illegals will almost always disappear before 90
  days

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Regulation Status Uncertain

• Prior Version of Rule Enjoined By California
  Court
• Final Rule Not Effective Until Injunction Lifted
  By Court
• Litigation Over New Rule Likely

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E-Verify Program

• Administered By U.S. Citizen And Immigration
  Services (USCIS)
• Voluntary (for now)
• New Rules To Make Mandatory For Government
  Contractors
• Must Register And Sign Agreement To Use
• Provides On-line Verification Of Employment
  Eligibility Status

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E-Verify Restriction

• Use After Employment Offer Accepted/I-9 Completed
• May Not Delay Start Date Or Training Because Of
• Delayed verification
• Tentative non-confirmation
• May Not Treat New Hires Differently Based Upon
  National Origin, Citizenship Status, Race, Etc.
• No time limitation (compare no-match rules)

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• MEDICAL INQUIRIES UNDER AMERICANS WITH
  DISABILITIES ACT

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Pre-Offer

• Do Ask-Can You Perform The Essential Functions Of
  The Job, With Or Without Reasonable
  Accommodation?
• Don't Ask-Any Medical Or Disability Related
  Questions, Including Workers' Compensation
  History
• Exceptions-Proceed With Caution
• May ask limited and reasonable follow up
  questions to information volunteered by applicant
  
• May make limited inquiry if medical problem
  apparent

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Post-Offer

• Can Make Conditional Offer Contingent On Medical
  Exam
• Trend-Medical Inquiry Has To Be The Only
  Condition (Can't Make Conditioned On References
  Or Other Factors)
• Drug Test Is Not Considered A Medical
  Examination-Can Be Done Pre-Offer (Possibly Must
  Be Done Pre-Offer Based On Above Trend)
• Trend-Use Of Any Pre-Employment Test That Is Also
  Used For Medical Diagnosis Is A Medical Exam
  (Example Psychological Testing)

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• Cannot Revoke Offer Based On Medical Exam Results
  Unless Shows Employee
• Unable to do essential functions of job or
• Poses direct threat of substantial health/safety
  risk to self or others
• Uncertain whether increased risk of injury enough
  
• Employer That Improperly Revokes Offer Faces
  Liability

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• GENETIC INFORMATION NONDISCRIMINATION ACT (GINA)

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GINA

• Cannot Request Genetic Information Concerning
  Employee Or Family Member
• Cannot Fail To Hire Because Of Employees Genetic
  Information
• Includes manifestation of disease or disorder in
  family member

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• BACKGROUND CHECKS UNDER THE FAIR CREDIT REPORTING
  ACT

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• FCRA Applies-Most Pre-Employment Background
  Checks By Third Parties
• FCRA Does Not Apply-Pre-Employment Checks Done
  Directly By Employer
• Internet searches performed without aide of third
  party
• Google search of person's name
• Check of public records on-line
• Reference checks
• Rules on what you can ask on reference checks are
  similar to what you can ask the applicant
• Lie Detector Tests Are Almost Always Illegal

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FCRA Procedures

• Step One - Time Of Application
• A) Consumer Report Disclosure Statement on
  separate paper

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Consumer Report Disclosure Statement

• In connection with your application for
  employment, promotion, reassignment, and/or
  retention as an employee, certain consumer
  reports which may contain public record
  information may be requested from one or more
  consumer reporting agencies (CRAs) about you.
  These reports may include information on your
  credit worthiness, credit standing, credit
  capacity, character, general reputation, personal
  characteristics or mode of living.

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• B) Authorization To Obtain Consumer Report

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• AUTHORIZATION TO OBTAIN CONSUMER REPORTS
• In connection with my application for
  employment, promotion, reassignment and/or
  retention as an employee with ___________________(
  Employer), I understand that consumer reports
  which may contain public record information may
  be requested from one or more consumer reporting
  agencies (CRAs). These reports may include the
  following types and/or other types of
  information Names and dates of previous
  employers, reason for termination of employment,
  work experience, drivers license and accident
  information, credit, bankruptcy proceedings,
  criminal records and other information from
  federal, state and other agencies which maintain
  such records.
• I AUTHORIZE, WITHOUT RESERVATION, ANY PARTY OR
  AGENCY CONTACTED BY EMPLOYER TO FURNISH THE
  ABOVE-MENTIONED INFORMATION.
• I have been apprised that I have the right to
  make a request to any CRA, upon providing proper
  identification, for the nature and substance of
  all information in its files on me at the time of
  my request, including the sources of information
  and the recipients of any reports on me which the
  CRA has previously furnished within the two year
  period preceding my request. I hereby consent to
  Employer obtaining the above information from any
  CRA, and I agree that such information which the
  CRA has or obtains, and my employment history
  with Employer if I am hired, may be supplied by
  the CRA to other companies which subscribe to it.
• I hereby authorize procurement of such consumer
  report(s). If hired, this authorization shall
  remain on file and shall serve as ongoing
  authorization for Employer to procure consumer
  reports at any time during my employment.
• ____________________________________ ____________
  _____________________
• Applicants Name (Please Print) Social
  Security Number
• ____________________________________ ____________
  _____________________
• Applicants Signature Date

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• Step Two Upon Receipt Of Disqualifying
  Report-Send Applicant
• a) Pre-Adverse Action Disclosure

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Pre-Adverse Action Disclosure

• Dear Applicant
• Thank you for submitting an application for a
  position with this
• company. Unfortunately, we currently intend to
  select another
• applicant for the position. This decision, which
  is expected to be
• implemented in the near future, is based in part
  on the results of
• the consumer report(s) obtained with your
  permission from one or
• more consumer reporting agencies (CRAs).
• I am enclosing a copy of the consumer report(s)
  relied upon, as
• well as a summary of your rights under the Fair
  Credit Reporting
• Act.
• I wish you well in your job search.
• Enclosures Consumer Report
• Summary of Rights

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• b) Summary of Rights under FCRA
• Form available at http//www.ftc.gov

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• c) Copy of report

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• Step Three Upon Rejection-Send Applicant

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• a) Adverse Action Notice

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Adverse Action Notice

• Dear Applicant
• As previously set forth in the Pre-Adverse
  Action Disclosure already provided to you, the
  company has now implemented its decision not to
  hire you. (or, insert here other action i.e.,
  not to promote you).
• The name, physical address and telephone
  number (toll-free, if available) of each consumer
  reporting agency consulted is as follows
• _________________________________________________
  __________________
• _________________________________________________
  __________________
• _________________________________________________
  __________________
• Please understand that the CRA(s) listed
  above did not make the decision to take what is
  referred to as adverse action against you in
  this matter and cannot give you specific reasons
  for the decision.
• You have the right to obtain a free copy of
  any consumer report(s) relied upon by the
  company, if you request such a report directly
  from the CRA within 60 days after receipt of this
  notice. You also have the right to dispute with
  the listed CRA(s) the accuracy or completeness of
  any information in the consumer report furnished
  by such CRA. Any dispute you raise with a CRA
  will not necessarily have any impact on our
  hiring decision, however.
• Thank you again for your consideration. We
  wish you well in your employment search.

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Types And Permissibility Of Background Checks

• Criminal Convictions And Prison Records-Always
  Okay
• Criminal Arrests-In Dispute
• Driving-Okay When Job Requires Driving, Otherwise
  Questionable.
• Credit, Judgments, Liens, Etc.-Okay When Job
  Involves Entrusting Employee With Money Or
  Property Of Value, Otherwise Questionable
• Identity-Okay
• Note-Checks Normally Should Be Uniformly Done
  Based Upon Position
• Not selective based upon applicant

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Disqualification Based On Background Check Results

• Rejection Of Applicant For Background Check
  Result Should Have Bearing On Position Applied
  For (Example Rejection Of Maintenance For Bad
  Credit Or Sales Associate For Bad Driving Record
  May Be Inappropriate)
• Automatic Disqualifying Applicant For Background
  Check Result May Be Deemed Discriminatory.
  Procedure Should Exist For Management Review And
  Decision.

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General Guidelines To Pre-Employment Inquiries

• General Rule-Concentrate On Job Related Inquiries

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Don't make inquiries that would tend to result in
disclosure of

• Disability
• Age
• Race
• Color
• National Origin
• Religion
• Sex
• Family/Marital Status/Children/Family Plans
• Genetic Information
• Union Membership Or Support
• Criminal Arrests Rather Than Convictions