Staffing

• Sometimes staffing needs will be obvious. If an employee announces plans to retire from or leave an integral position, the organization likely knows the type of replacement needed. Other times, however, staffing needs require planning and creativity.

In an attempt to see what staffing needs will exist in the future, it is often beneficial to look into the past. This is known as a needs analysis. Some general questions may be asked to help determine some of this information:

• Where does the organization want to be? (If the organization is to grow, will there be the need for additional positions?)
• Where is the organization now? (How many employees does the organization have now, and are there enough?)
• What costs are involved? (Will any new positions be justified, and is the organization prepared to incur the cost of the positions?)
• How will the organization get where it wants to be? (What will new positions be, and what recruiting methods will be used?)

Included in these questions is the application of the supply vs. demand concept. By answering “Where does the organization want to be,” an employer gets a sense of its demand for labor. If the organization is in a growth mode, there may be a demand for additional staff. A sense of the organization’s “supply” comes from answering the question, “Where is the organization now?” This is where an organization looks at such things as where it looks for potential candidates, and whether existing staff members can meet current and future goals.

Forecasting

One way to help determine what may happen in the future is to look at how the organization has been doing. Have sales continued to increase? Can a correlation be made as to the quantifiable organizational activity and staff levels? For example, for the past 10 years, for every $100,000 worth of sales increases, two more positions have been required. If the company is expected to grow by $500,000 in the next year, there may be the need for ten more positions in that time frame.

Another means of determining future needs is to look at turnover analysis. If the organization has a consistent turnover rate and nothing indicates the pattern will change, the pattern should continue. This can help employers project the number of positions that will likely need to be filled over a particular time period.

Costs

As with anything else that requires resources, staffing involves costs. The organization needs to be aware of how much it may cost to add positions or train existing employees, if that is what needs to be done to meet the goals. The labor costs need to be identified and managed.

Finally, the organization will have to determine what methods will be used to recruit candidates for new or open positions. Will they look internally? Will they look locally? Will they need to expand their search?

Sources for candidates

Where organizations look for potential candidates can require a bit of forethought. If the position requires an uncommon talent, the search may have to go beyond local boundaries, and perhaps beyond the continental boundaries. If the position is one which has many interested and viable candidates, the customary sources may be tapped.

Some sources may fluctuate based on the market and economy, which affects unemployment and other factors that influence how effective customary sources may be.

Not only are the sources important to identify, but also the method used for attracting candidates. Local sources may benefit from an ad in the newspaper or at a local college. National sources may require ads in industry publications or the efforts of a third party.

Many organizations will look internally for candidates, as well as externally. This is an effective cost-conscious method. Organizations that do not have a sufficiently diverse workforce may not wish to rely exclusively on internal sources, since it will hinder their diversity efforts.

If a collective bargaining agreement is involved, it may also need to be considered.

Uniform Guidelines on Employee Selection Procedures (UGESP)

• The UGESP guidelines have been adopted by the EEOC, DOL, DOJ, and CSC.

The Uniform Guidelines on Employee Selection Procedures (1978):

• Provides a framework for determining the proper use of tests and other selection procedures during the hiring process; and
• Incorporates a single set of principles designed to assist employers, labor organizations, employment agencies, and licensing and certification boards to comply with federal law requirements regarding prohibited discriminatory employment practices based on:
  • Race
  • Color
  • Religion
  • Sex
  • National origin

They are issued pursuant to Title VII of the Civil Rights Act. The guidelines have been adopted by the:

• Equal Employment Opportunity Commission,
• Department of Labor,
• Department of Justice, and
• Civil Service Commission.

Elements used in a selection process should be job-related. A selection procedure is any measure, combination of measures, or procedures used as a basis for an employment decision. The guidelines do not require a user to conduct validity studies of selection procedures where no adverse impact results. The guidelines indicate that if a company has a selection rate for a protected class that is less than 80 percent of the rate for the highest selection rate, adverse impact has occurred. Employers must look at the ratio of the number of marginalized hires to the number of marginalized applicants compared to the ratio of the number of white or male hires to the number of white or male applicants.

Adverse impact is not necessarily discrimination but, at the very least, requires further examination of the selection procedures to confirm their appropriateness. All users are encouraged to use selection procedures which are valid, especially users operating under merit principles. The guidelines describe various methods of validation.

Applications and applicants

• Applications and resumes are the most common types of information.
• Information is only good if it is verifiable.

Once recruiting efforts are underway, various types of applicant information will begin to surface. The two most common types of information are the employment application and résumé.

A major aspect of sifting through applicants is the employment application. Employers may get information in other formats, but the job application is usually the meat and potatoes of the selection process. Even if other forms are involved, such as resumes, the employment application should be the major source of information.

Unlike the employment application, the résumé is drafted by the applicant, and thus contains the information applicants want employers to know. Most employers find it beneficial to use the résumé as a general screening tool, but not as a replacement for a thorough employment application for serious applicants. By having both documents, employers can compare the two for any discrepancies.

An employer’s main objective is to identify anything that might cause the screening process to discontinue. In other words, an employer is looking for possible disqualifiers, or red flags, that indicate the applicant may not be a good fit for the organization.

When reviewing an employment application or résumé, there are certain things an employer should look for. This will vary based on the type of application and position, but some general factors to consider are:

• Does the applicant have the key qualifications?
• Does the applicant have experience in a similar job or environment?
• Does the applicant have skills and knowledge associated with the essential functions of the job?
• Does the applicant have any meaningful accomplishments?

Employers are looking to determine what applicants could do for them—how they could handle the position and fit in with the organization. Because the best way to find these answers is to determine how the applicant has performed in other organizations or experiences, past experiences are one of the most important things to watch for when reviewing information.

It’s also very important to look at the KSAs (knowledge, skills, and abilities) right away. If these are not adequate, an employer may save time in reviewing the rest of the information. When looking at KSAs, employers should make sure they are relevant to the position.

Information is only good if it is verifiable, such as:

• Salary
• Positions held
• Education

Interviewing

• Preparing a list of interview questions is highly beneficial to interviewers.

Interviewing is critical not only because it provides an opportunity for the company to make a positive first impression, but also because it provides an opportunity to learn about the candidate. Oftentimes, Human Resources will perform an initial screening, with likely candidates getting subsequent interviews with a hiring manager. This may require managers or supervisors to receive training for proper interviewing techniques.

The two main goals of an interview are to:

• Learn as much as possible about an applicant’s work background, habits, and skills; and
• Encourage the best applicants to join the company.

Preparing a list of questions to ask during an interview is beneficial because it helps the interviewer:

• Achieve the goals of the interview;
• Maintain consistency;
• Steer away from illegal questions; and
• Stay organized and make a better impression.

When conducting interviews, employers can get in trouble for saying the wrong thing. For example, the conversation might stray into political, religious, or family areas that are:

• Irrelevant to the candidate’s ability to perform the job; and
• Should have no bearing on the hiring decision.

Interviewing dos and don’ts

While it’s important to learn about a prospective employee, companies could face liability if they ask the wrong questions during an interview. Not only that, but some employers have been known to make verbal “promises” they can’t keep, and in court, these promises have been deemed binding oral contracts.

Federal laws prohibit discrimination in employment, which includes asking questions that may be used to make a hiring decision based on:

• Race
• National origin
• Sex
• Age
• Disability
• Religion

Before conducting interviews, employers should have a script of questions known to be safe. Asking the same questions of all candidates not only helps to compare them equally, but also minimizes the possibility of slipping up and saying something improper.

Negligent hiring/retention

• Employers may be liable for actions employees take if they were negligent in hiring them.

Employers may be liable for actions employees take at work if it can be shown that the employers were negligent in hiring or retaining them. Employers should:

• Take threats and harassment that occur within the workplace seriously, and
• Adequately respond to employees’ complaints and warnings about potentially dangerous employees.

Background checks may:

• Reduce the likelihood of hiring violent employees,
• Reduce the company’s exposure, and
• Help demonstrate that the employer did not act negligently if the check provided no reason for concern.

Non-compete agreements

• Non-competes must be reasonable to be enforceable.
• Non-competes may deter prospective employees.

A non-competition or non-compete agreement is a written contract between employers and employees that restricts certain employee activities when they leave the organization to work elsewhere. A non-compete may be put into place to:

• Protect sensitive business information or trade secrets; or
• Limit the employee from working in the same field within a given geographical area or time period.

Imagine this scenario: Last month, an employee left to join a competitor, and curiously, this competitor is now setting up a state-of-the art sales system akin to the one the former employee had been working on.

Issues like these compel many companies to create non-compete agreements, which might prohibit former employees from:

• Contacting customers with whom they had contact while employed;
• Working for direct competitors, which may include self-employment; or
• Sharing trade secrets after leaving the company.

However, non-competes won’t hold up just because an employee agreed to the terms and signed an agreement. The agreement must be reasonable.

The reasonableness factor

There is no federal law regarding non-compete agreements, so their legality will vary by state. Some states specifically prohibit non-competes, but most require that they be reasonable to be enforceable. This reasonableness standard applies to:

• The extent of the restriction on the former employee, and
• The duration of the restriction.

The agreement must balance the organization’s legitimate business interests while still allowing employees to work in their chosen field. For example, a beauty salon might have good reason to prohibit former stylists from working within 15 miles of the business for at least six months after their employment ends. Without such an agreement, a stylist’s clients may follow them to a new place of employment, taking business away.

However, requiring stylists to sign an agreement promising not to work within 60 miles for at least two years would make it very difficult for them to earn a living in their chosen field. This type of non-compete probably wouldn’t be enforceable in most states because:

• It’s not reasonable in scope, and
• It’s probably not necessary to protect the company’s interests.

Even if employees sign the agreement, a court may not uphold it if the non-compete is not clear and reasonable. To be valid, a non-compete agreement must be narrowly tailored to meet state law and the needs of the employer while still balancing the needs of the employee.

Non-competes are not for all organizations

Before adopting a non-compete, employers should consider the pitfalls of such an agreement. Even if the agreement legally restricts former employees, it may deter potential employees who don’t want to deal with such limitations if the job doesn’t work out. Current employees may feel resentful of the control imposed by a non-compete, and those who aren’t happy may feel bound by it, resulting in unhappy, unproductive employees with the organization long term.

If the company decides that a non-compete is necessary, they should work with an attorney to draft an agreement that will hold up in court. Non-competes can work to protect an organization’s interests, but only if they’re carefully set in a way that satisfies applicable state requirements.

Relocation

• There are a range of relocation packages employers can offer.
• Relocation packages are key for attracting far-off applicants.

Employers will likely have an easier time recruiting applicants from a distance if they offer a relocation package. These can vary from one extreme to another, including:

• Some larger companies offer to buy the new employee’s current home if it can’t be sold within a certain time period.
  • That way, the new employee isn’t stuck trying to sell a home and obtain a new one, which is often contingent on the sale of the current home.
• Some packages give an allowance of a certain amount of money ($2,000, for example) that new employees can spend however they see fit.
  • This could cover the moving company, airline tickets, temporary housing, and other expenses involved with the move.
• Some packages agree to pay for the moving company and certain incidental expenses involved, such as:
  • A few nights’ hotel stay while house hunting, and
  • A set limit for mileage, meals, and other relocation expenses.
• Some employers may offer to pay for temporary housing for a set time period before new employees are responsible to pay for their own housing.
  • This could be a matter of weeks or a month, whatever seems appropriate for the situation and budget.

There are some tax implications involved in relocation packages, and employers should be aware of those when they offer them.

Relocation benefits that appeal to applicants

Competition for talent is tough. Employers are increasingly looking to applicants who live in far-off places to fill key roles. An important component in attracting applicants is a valuable relocation package, of course, but an employer may want to go beyond the basics when offering relocation benefits. Creative, outside-the-box benefits can be attractive to potential job candidates.

First, employers should take stock of their current relocation package(s) and consider management input. Then, they should survey their most recent hires and consider:

• What did they like best about their relocation package?
• What would they have liked to have seen?
• How was their relocation experience as a whole?

These responses will reveal what the organization is doing right and where steps might be taken to improve new-hire satisfaction.

Some relocation benefits might be more well-received than others, depending on an employer’s culture. Additionally, linking relocation assistance to culture can have a positive effect on an organization’s employment branding efforts. Some less traditional relocation and employment benefits tied to specific culture-fostering goals might include:

• Work-life balance benefits, such as:
  • Resources for researching local schools and daycare providers;
  • Recreation opportunities and resources, such as:
    • Fliers to local campgrounds,
    • Free passes to a local attraction, and
    • Directions to nearby dog parks;
  • Financial resources, including the opportunity to discuss 401(k) rollovers with a financial adviser; or
  • Lists of regional health care providers.
• Health and wellness benefits, such as:
  • Certificates for free healthy cooking classes;
  • Directions to local organic and specialty grocers, farmers’ markets, and food co-ops;
  • Fitness center or personal trainer discounts;
  • Participation opportunities on company-sponsored sporting teams; or
  • Lunch on the company at a healthy restaurant.
• Innovation and creativity benefits, such as:
  • Technology discounts, purchase plans, or certificates;
  • An education reimbursement program; or
  • Information on local clubs and volunteering opportunities.
• Adaptability and originality benefits, such as:
  • A cafeteria plan of relocation benefits from which people can select their top choices.

A successful relocation package doesn’t have to mean spending thousands on moving expense reimbursements. Simply providing robust information can help bolster an organization’s retention of newly relocated employees, and this thoughtful reception will help them feel welcomed and build ties to the area quicker than what would be achieved through simple lump-sum payments.

Offer letters

• Companies must extend an offer of employment to desired candidates, often as an offer letter.
• Offer letters can come in many forms.

When the most qualified and desirable candidate has been identified, the company will need to extend an offer of employment. Most commonly, the offer is put in writing and mailed to the individual. This helps to document:

• The date of the offer, and
• The details of the offer.

However, many employers also choose to call candidates and let them know an offer is coming. If they’ve been interviewing at more than one company, the call can more quickly inform them of an impending offer and delay them from accepting other employment.

The offer letter does not have to be extensive, nor does it have to provide too many details. In its simplest form, the letter can ask them to come in and discuss the offer in person. However, most offer letters will contain enough information to get the candidate interested, including:

• The offered salary or hourly wage,
• Whether any bonuses or commissions are available, and
• A brief listing of benefits, such as:
  • 401(k) plans,
  • Health insurance,
  • Profit sharing, and
  • Vacation.

The letter does not need to offer specifics on these benefits, but merely mention that they are available. The company might be willing to negotiate some of the benefits, such as the number of vacation days. Also, the letter does not need to list the date of hire, and might simply include a statement that employment will begin on the first day of work, or when they first report for orientation or training.

The offer letter will normally ask them to sign an acknowledgment either accepting or declining the offer, although if candidates intend to negotiate some of the listed terms, they may want to discuss the matter first. The company can decide how flexible it wants to be in these situations.

The offer might also state that it is conditional upon successfully passing a background check. This might include:

• A drug screen,
• Verification that they possess a required license or certification, or
• Other conditions.

If candidates fail the background check for some reason, the offer can be withdrawn.

Onboarding

• Onboarding periods are critical to employees’ success.
• Managers must understand their important role in the onboarding process.

This is the new person’s introduction to the company, the department, and the new job. The first impression should be favorable. While much of the general orientation is handled by Human Resources, managers and direct supervisors are largely in charge of orienting employees to their job.

Do managers realize the importance of onboarding?

How a new employee is treated sends a message to not only the new person, but to all employees about how much they are valued by the organization. If a new employee is treated as just another item in a manager’s day that they don’t have time for, that will be evident. But if the new arrival is truly welcomed and the manager makes time to orient the new employee to the job and the department, that will send the signal that the company recognizes and appreciates the value of its people.

The department where new employees will be working can make them feel welcome by:

• Having their workstations ready on day one, complete with supplies;
• Informing their coworkers of:
  • When they will start,
  • Something about their background, and
  • Which projects they will be working on.

The department manager should:

• Introduce the new person,
• Give a tour of the facility,
• Explain interdepartmental processes and relationships,
• Assign a mentor to answer questions, and
• Go over specific departmental procedures.

Additionally, it’s a good practice for the manager to arrange for the department to have lunch together on the first day so that new employees can get to know their coworkers.

Onboarding is a process of integrating new employees into the business environment and culture, and this takes time. Employers should be sure that department managers are handling the onboarding process well, because what happens after orientation ends and they actually start the job is critical to their success.

Before the employee arrives

While the true onboarding period doesn’t begin until new employees actually report for work, there is a lot of “leg work” that should be done before their first day. Planning ahead for them will make the orientation process go much more smoothly on their first day and prove beneficial in the long run as they adjust to the new position.

Before their first day, it’s a good idea to:

• Notify coworkers in new employees’ departments or areas that they will be starting. Ask the coworkers to welcome them and offer their support;
• Inform them about the types of identification they need to bring with them on the first day to complete required paperwork, such as Form I-9;
• Prepare interesting tasks for them to accomplish during the first couple of days that will help them learn something of value, such as work processes or networking;
• Schedule them in any training or classes that are needed;
• Ensure their work area is available, clean, and has the necessary tools, supplies, and equipment;
• Set up email accounts, computer logins, etc.;
• Obtain any door keys, passes, parking permits, etc. that they will need;
• Gather information that they will be given, such as handbooks, policies, and benefits;
• Assign them a mentor, if possible; and
• Arrange for them to meet key people in the organization.

Employee orientation

• Employee orientation will cover many important topics new hires need to know.
• The onboarding process can extend beyond orientation.

Once a company has chosen employees for their positions, they must be provided with information on things like:

• Wages and benefits,
• To whom they report, and
• Their work location.

Some companies have a formal orientation structure, while others take a more informal approach to onboarding. A company’s style should match its culture, but employers should be sure to include certain elements.

Welcome

When meeting new employees on their first day, employers should offer a T-shirt, coffee mug, or some other memento with the company logo to help them feel like a welcome part of the team. They should also consider providing:

• A map that shows nearby restaurants, and
• A map of the facility, especially if it has several buildings.
  • Seemingly minor issues, such as not knowing where to park, can frustrate new hires on their first day.

Then, employers should introduce the organization by describing the purpose, scope, and mission of the company—where it has been and where it is going. This will help create a sense of identity and of pride in being a part of the organization.

Review the job description

The job description serves as the framework of a position’s:

• Duties
• Responsibilities
• Working conditions
• Physical requirements
• Other necessary qualifications

It lets employees know what to expect of the job and what is expected of them. Employers should review the job description with them to dispel any confusion about the job’s requirements.

Discuss work hours and related items

To ensure that new employees know when they are expected to be at work, employers should explain the company’s policies on:

• Tardiness
• Excused and unexcused absences
• Flex time
• Rotating shifts
• Recording work hours (timecards, time sheets)
• Breaks
• Meal breaks
• Lunchroom/food service
• Eating at workstations
• Personal telephone and email

This is also a good time to review the company dress code and, if they are to wear uniforms, go over the details of the uniform program.

Confirm pay rates

During orientation, Human Resources (HR) should review:

• The agreed-upon rate of pay;
• The pay schedule;
• When employees will receive their first check;
• How paychecks are delivered;
• The availability of direct deposit;
• Additional procedures regarding pay; and
• Payroll deductions for taxes, insurance, and similar programs.

Orientation is also a good time to discuss the company’s policies for performance reviews, pay increases, and reimbursement for business-related expenses.

Cover company policies

During orientation, it’s important that new employees be informed of the company’s policies and procedures. A few policies that may need clarification and explanation are:

• Discrimination. Employers should make it clear that discrimination is not tolerated. Discrimination is any situation in which a group or individual is treated differently based on:
  • Race
  • Sex
  • Religion
  • Age
  • Disability
  • Other protected classes
    • Employers should explain the company’s procedures for employees to report discrimination (or any offensive conduct) and the company’s policy for keeping the reports confidential.
• Sexual harassment. Employers need to clearly communicate to all employees that sexual (or other) harassment will not be tolerated. They should explain:
  • The company's policies, and
  • Procedures for employees to report any cases of sexual harassment.
• Work-related injuries and illnesses. New employees must receive clear instruction on how to report work-related injuries and illnesses.
  • This is also a good time to review the benefits of workers’ compensation insurance.

Explain onboarding period

Orientation is usually associated with the training and information that is given to employees on their first day. However, orientation can last for a much longer period of time and include an evaluation of their performance, feedback, etc. Orientation can also be tied to employer-provided benefits, in cases where certain benefits may not take effect until they have completed the orientation period.

Background checks

• Backgrounds checks are vital to the hiring process.
• Background checks can vary in extent and depth.

A background check can have far-reaching consequences if done insufficiently, or not done at all. Résumés are not always factual, and job candidates can lie on their application about their:

• Education
• Experience
• Criminal record
• Employment history

Employers should always verify applicants’ information, and failing to do so could be costly.

The type of background check performed may vary depending on the position, but not by person. If employers perform a check on candidates for a certain position, they must do so for all candidates for that position. This does not mean employers must perform a check for every applicant, but if they ordinarily check the top three finalists, they must be consistent.

Likewise, employers cannot limit background checks to certain individuals based on their:

• Race
• Age
• Religion
• Gender
• National origin

Any background checks performed should be done objectively, without regard for the individual. For example, a gap in employment may be more than simply a period of unemployment indicating employees were:

• Laid off,
• Terminated, or
• Quit before they lined up another job.

It could also be the result of jail or prison time. Employers are obligated to avoid hiring someone who poses a threat to other employees or to members of the public. Performing a thorough background check and finding employment gaps is the first step in that process. Hiring managers should check references well, especially dates of employment, since many candidates lie to cover gaps in employment on their applications.

Performing an adequate background check does not necessarily mean doing an all-out check for every single position. An adequate check refers not only to the extent of the check, but also to what is appropriate for the position. For example, if an employee will have no access to money and will not deal with any of the company’s financial matters, a credit history check may not be reasonable, and depending on state law, it might not even be legal.

For employees who deal with the public, particularly in unsupervised situations where they are required to enter peoples’ homes, a criminal record check is likely justified. Because employers have a duty to protect the public from violence or other harm that an employee may cause, they should perform an adequate check to determine if a candidate would pose a risk to others.

Generally, the greater the responsibility of the position, the more extensive the background check.

When to check

When background checks are conducted on job applicants, they should be performed at the same point in the hiring process, usually after extending a conditional offer of employment. Some employers will include questions on the job application asking applicants whether they have any convictions, but they should be aware that many states, and quite a few cities, have adopted so-called “ban the box” laws to prohibit such questions. Typically, these laws prohibit inquiries about criminal history until the first interview, or until after a conditional job offer has been extended.

Background checks are usually conducted for incoming candidates, but they aren’t limited to the beginning of employment. Many employers perform checks on internal candidates when they are:

• Promoted or,
• Upon transfer to another position that harbors different responsibilities.

Employers shouldn’t assume that candidates’ backgrounds were adequately and thoroughly checked when they were hired. Even if they were, employees’ personal lives change over time. Any number of things may be discovered that weren’t there when they were hired, or weren’t relevant to the position at the time, but are relevant now.

For example, employees hired for entry-level positions that did not involve handling cash or company funds might have undergone a basic background check. If they receive an offer of promotion to a higher position that does involve such responsibilities, employers may want to conduct a more thorough background check.

Employers should keep in mind that the amount of time passed since a conviction (or financial problem, such as bankruptcy) should be considered when deciding if background check results should justify withdrawing a job offer. If an employee has been with the company for more than 10 years and has a strong performance record, older convictions may not be relevant. On the other hand, if the employee has recent issues outside of criminal convictions, that could bear on the decision of if the offer should be withdrawn.

What to check

A background check might incorporate any of the following:

• Criminal records
• Court records
• Credit history
• Motor vehicle records
• Employment history
• Educational background
• Professional licenses
• Military records
• State sex offender registry
• References
• Drug tests

This is not an exhaustive list, and in most cases, these can be checked before an offer is made. After a conditional job offer is made, the company may be able to make job-related inquiries into candidates’ physical fitness for the position by:

• Making medical inquiries, or
• Checking into their workers’ compensation records.

However, all entering employees in a particular job category must undergo the same physical evaluations. If a job offer is withdrawn based on medical information, the company must be aware of the legalities of doing so.

Consumer Credit Protection Act (CCPA)

• The CCPA is divided into six subchapters, and employers will want to focus on II and III.

The Consumer Credit Protection Act of 1968 (CCPA) requires creditors to state the cost of borrowing in a common language so that average consumers can figure out what the charges are, compare costs, and shop for the best credit deal.

Since 1968, credit protections have multiplied. Generally, the Act:

• Ensures consumers are told the cost of borrowing;
• Prohibits unfair discrimination in credit transactions;
• Ensures consumers are told why credit is denied;
• Allows consumers access to credit records;
• Provides a way to settle billing disputes; and
• Reduces credit problems and confusion.

The CCPA is currently divided into six subchapters:

• Subchapter I: Consumer Credit Cost Disclosure;
• Subchapter II: Restrictions on Garnishment;
• Subchapter III: Credit Reporting Agencies;
• Subchapter IV: Equal Credit Opportunity;
• Subchapter V: Debt Collection Practices; and
• Subchapter VI: Electronic Fund Transfers.

Employers will want to focus on Subchapters II and III.

Wage garnishment

Subchapter II of the Act:

• Protects employees from discharge by their employers because their wages have been garnished for any one debt; and
• Limits the amount of an employee's earnings that may be garnished in any one week.

Subchapter II applies to all employers and individuals who receive earnings for personal services, including:

• Wages,
• Salaries,
• Commissions, and
• Bonuses and income from a pension or retirement program.

Tips are ordinarily not included.

Consumer reports

Subchapter III of the Act, also known as the Fair Credit Reporting Act (FCRA), protects individuals by requiring consumer reporting agencies providing information to adopt procedures that promote:

• Confidentiality
• Accuracy
• Relevancy
• Proper use of information

Subchapter III affects employers and consumer reporting agencies.

Employee Polygraph Protection Act

• The EPPA limits how employers may administer lie detector tests.

Employers are limited in how they can administer lie detector tests to their employees under the provisions of the Employee Polygraph Protection Act (EPPA), which was passed by Congress in 1988. The Department of Labor (DOL) has published rules to implement the provisions of the EPPA.

The agency published:

• Interim final rules in the?Federal Register?on October 21, 1988, with an effective date of December 27, 1988 (the effective date of the Act); and
• Final rules on March 4, 1991, with an effective date of April 3, 1991.
  • The rules are:
    • Administered by the DOL’s Wage and Hour Division, and
    • Found in Title 29 Part 801 of the?Code of Federal Regulations?(CFR).

The law does not preempt:

• Any state or local law; or
• Any negotiated collective bargaining agreement that prohibits lie detector tests or is more restrictive.

Fair and Accurate Credit Transactions Act (FACT Act)

• The FACT Act makes many amendments to the FCRA.

The Fair and Accurate Credit Transactions Act (FACT Act) of 2003 amends the Fair Credit Reporting Act (FCRA) to:

• Enhance the ability of consumers to combat identity theft;
• Increase the accuracy of consumer reports;
• Allow consumers to exercise greater control regarding the type and amount of marketing solicitations they receive;
• Restrict the use and disclosure of sensitive medical information;
• Loosen the restrictions on employers who conduct misconduct investigations using consumer reporting agencies; and
• Bolster efforts to improve financial literacy among consumers.

The Act includes several effective dates based on:

• Priority;
• Industry preparation time; and
• Other policy concerns.

The Federal Trade Commission and the Federal Reserve System are authorized to prescribe regulations relating to the FACT Act.

Employee misconduct investigation exclusion

The FACT Act, in part, amended the FCRA to provide exclusion for certain employee misconduct investigations. Employers can use consumer reporting agencies to investigate suspected employee misconduct, such as sexual harassment, without being required to obtain the employee’s consent first. Previously, the “Vail Opinion Letter” required employers who hired third-party organizations to investigate allegations of sexual harassment to provide prior notice to those being investigated and get their approval.

The new amendment:

• Removes the hurdle;
• Makes it easier to perform workplace investigations; and
• Reduces risk to whistleblowers.

Employers must still provide notice to employees, but not until after the investigation.

Fair Credit Reporting Act (FCRA)

• The FCRA is a subchapter of the CCPA.
• To be covered by the FCRA, consumer reports must be prepared by a CRA.

The Fair Credit Reporting Act (FCRA) of 1970 protects individuals by requiring consumer reporting agencies providing information to adopt procedures that promote:

• Confidentiality
• Accuracy
• Relevancy
• Proper use of information

Employers requesting consumer reports, too, have responsibilities under the FCRA.

The FCRA is Subchapter III of a larger act called the Consumer Credit Protection Act of 1968 (CCPA).

How the FCRA affects employers

If employers comply with the FCRA, they may use consumer reports when they:

• Hire new employees; and
• Evaluate employees for:
  • Promotion;
  • Reassignment; and
  • Retention.

The FCRA is designed primarily to:

• Protect the privacy of consumer report information; and
• Guarantee that the information supplied by consumer reporting agencies is as accurate as possible.

Amendments to the FCRA have significantly increased the legal obligations of employers who use consumer reports. Congress expanded employer responsibilities because of concern that inaccurate or incomplete consumer reports could cause applicants to be denied jobs or employees to be denied promotions unjustly.

The amendments ensure that individuals are:

• Aware that consumer reports may be used for employment purposes and agree to such use;
• Notified promptly if information in a consumer report may result in a negative employment decision; and
• Provided contact information for the consumer reporting agency that provided the information.

Consumer reports

A consumer report contains information about a person’s:

• Personal and credit characteristics
• Character
• General reputation
• Lifestyle

To be covered by the FCRA, a report must be prepared by a consumer reporting agency (CRA), a business that assembles such reports for other businesses.

Employers often do background checks on applicants and get consumer reports during their employment. Some employers only want their credit payment records, while others want driving records and criminal histories. For sensitive positions, it’s not unusual for employers to order investigative consumer reports, which include interviews with their:

• Friends
• Neighbors
• Associates

Every type of report are consumer reports if they are obtained from a CRA.

Applicants are often asked to give references. Whether verifying such references is covered by the FCRA depends on who does the verification. For example:

• A reference verified by the employer is not covered by the Act; and
• A reference verified by an employment or reference checking agency (or other CRA) is covered.

In the Definitions Section of FCRA, the term Excluded Communications provides special procedures for reference checking. Otherwise, checking references may constitute an investigative consumer report subject to additional FCRA requirements.

Red Flags Rule

• To be covered by the Red Flag Rule, businesses must be financial institutions, creditors, or have covered accounts.

The Red Flags Rule requires financial institutions and creditors to:

• Spot “red flags” that could signal the risk of identity theft of customer information; and
• Create and implement a program for preventing identity theft of information in their possession.

Many businesses question whether they are covered by the Red Flags Rule, and if so, what they must do to comply.

Who is covered?

To know whether employers are covered entities under the rule, they must determine:

• If they are a financial institution or creditor by definition; and
• If they have covered accounts.

A financial institution is a bank, savings and loan, credit union, or other entity that holds a transaction account belonging to a consumer. A transaction account is an account that allows the owners to make payments or transfers, such as:

• Checking or savings accounts; or
• A brokerage account that allows consumers to write checks.

A business or organization is a creditor if it regularly:

• Extends, renews, or continues credit;
• Arranges for someone else to extend, renew, or continue credit; or
• Is the assignee of a creditor who is involved in the decision to extend, renew, or continue credit.

Credit means an arrangement by which the employer accepts payment after the product was sold or the service was rendered. Some examples are:

• Finance companies;
• Automobile dealers;
• Mortgage brokers;
• Utilities; and
• Telecommunications companies.

Non-profit or government agencies might be considered creditors if they accept deferred payments for goods or services. However, according to the Rule, simply accepting credit cards as a form of payment does?not?automatically make a business a creditor.

What constitutes a covered account?

There are two types of covered accounts. One is an account used mostly for personal, family, or household purposes that involves multiple payments or transactions, such as:

• Credit card accounts;
• Mortgage loans;
• Car loans;
• Utility accounts; and
• Checking or savings accounts.

The other type of covered account is one for which there is a foreseeable risk of identity theft, such as a small business or sole proprietorship account. In determining whether a business has such an account, the business should consider:

• The risks associated with how the accounts may be opened or accessed; and
• Past experiences with identity theft.

If a business or organization is a financial institution or creditor, but does not have any covered accounts, it doesn’t need a program. However, that doesn’t mean the business shouldn’t take measures to lessen the risk of identity theft.

What the program should look like

The Red Flags Rule gives employers flexibility to design a program in a way that fits the business. However, the program must follow certain guidelines to be in compliance, as well as these four basic steps:

• Identify relevant red flags. Examples of warning signs of possible identity theft, or “red flags,” are:
  • Warnings from a consumer reporting agency;
  • Personally identifying information or documentation that appears suspicious;
  • Suspicious activity on an account; or
  • Notices from customers or law enforcement agencies relative to possible identity theft.
• Detect red flags. Detecting red flags means working detection methods into the regular business procedures. For example, a business may decide to:
  • Cross-check account information;
  • Require an additional step for customer identification; or
  • More closely verify changes to account information.
• Take steps to prevent and mitigate identity theft. Efforts to prevent and mitigate identity theft could include:
  • Refusing to open a new account unless all required information is present;
  • Closing an account with suspicious activity; or
  • Notifying a consumer of unusual activity on an account.
• Be updated periodically. A program must include a process for updating it, since:
  • The methods and types of identity theft may change over time; or
  • A business may change its procedures, necessitating a change in the program.

Other requirements

Other requirements include:

• If an organization has a Board of Directors, the Board must approve the program;
  • If an organization does not, then the program must be approved by an appropriate committee or member of senior management.
• Any material changes to the program must also be approved by the Board, committee, or management; and
• Training of staff should be a material element of a program.

Post-employment inquiries

• Employers must be careful when inquiring after prospective employees or giving reference for former ones.

Defamation and negligent referrals are common concerns for employers when inquiring after prospective employees.

Defamation

Defamation is a type of lawsuit in which someone claims that someone else has written or said something about them that is:

• Untrue; and
• So serious that it injures their reputation and keeps others from dealing with them.

Defamation suits have recently been invoked regarding unfavorable references. A common, modern day dilemma exists for all employers who are called to discuss former employees, such as:

• What can the employers say if employees performed poorly?
• What if they were let go for a suspected theft?
• If employers are hiring for sensitive positions, can they seek and obtain accurate references on a job applicant?

Defamation suits are a matter for state laws and the courts. Most states have handled defamation in similar ways. Certain generalizations can be made, such as:

• Truth is always a defense to the common law claim of defamation;
• Qualified privileges exist if a statement is made in good faith serving a business interest or purpose;
  • A harmed employee can defeat a qualified privilege by showing actual malice on the employer’s part—a knowledge of falsity or reckless disregard for the truth.
• Some states provide employer immunity where references are given in good faith.

Despite the availability of defenses and the likelihood they may prevail in a civil suit, many employers are reluctant to do anything more than verify:

• Dates of employment;
• Salaries; and
• Other factual information.

While truth may be a defense to a defamation action, absent immunity, employers may still have to defend themselves in private actions, and proving the truth can be difficult. Obtaining an applicant’s written consent allowing for the release of information by previous employers is helpful, but does not eliminate the possibility of a suit.

In response to industry concerns about the legal liability which could arise from providing information about driver safety performance history, Congress determined that the societal importance of this information is sufficient to grant limited liability to motor carriers by preempting state and local laws and regulations creating liability. This is carried out in Section 4014 of TEA-21 (Transportation Equity Act for the 21st Century, enacted June 9, 1998).

The liability limitation applies to prospective and previous employers, their agents, and their insurance providers from defamation suits when investigating, using, or providing accurate information about safety performance histories of their drivers. The right of drivers to review such employer investigative records, and to have them corrected or include a rebuttal from the driver, is made statutory. Employers were required to begin implementing the new requirements (found in CFR 391.23) on October 29, 2004.

Negligent referral

Generally in most states, employers have no legal obligation to provide information about former employees. Recently, however, some suits have challenged that position, and liability may be found in unusual situations, particularly where they were known to have engaged in violent acts while with the former employer. Liability for failing to provide information has been termed negligent referral.

Another form of negligent referral is liability for providing misleading information. For example, a negligent referral suit might be invoked by prospective employers when former employers mislead them by giving an overly positive reference for someone who was known to be less than glowing.

Affirmative action obligations and promoting diversity

• All employers can hire marginalized people to promote diversity.

Certain federal contractors and subcontractors are obligated to have an affirmative action plan and take certain actions to promote diversity in hiring. They may target their recruitment efforts at women or minorities. They may also need to give preference to:

• Veterans under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), or
• Individuals with disabilities under the Rehabilitation Act of 1973.

Taken together, these laws ban discrimination and require federal contractors and subcontractors to take affirmative action to ensure that all individuals have an equal opportunity for employment, without regard to:

• Race
• Color
• Religion
• Sex
• National origin
• Disability
• Protected veteran status

For more on this aspect of recruiting, see the topic Affirmative Action.

Promoting diversity does not need to be limited to affirmative action employers. All employers can target marginalized people in their recruitment efforts to try to diversify their labor pool. The Uniform Guidelines on Employee Selection Procedures offer guidance on avoiding adverse employment actions that may affect marginalized people during the selection procedures.

Application review tips

• There are many things employers should look for when reviewing applications.
• Unexplained gaps in employment are the biggest red flags.

When reviewing an employment application, employers should look for:

• Legibility: The application must be legible if the information it contains is to be verified. An unreadable application may be an applicant’s attempt to confuse or mislead.
• Accuracy: Names, phone numbers, and addresses of each past employer should be accurately and chronologically listed. Previous employers should be easy to follow up on. Although not an automatic disqualifier, an applicant’s information not matching other verifiable records is a cause for concern.
• Completeness: The application should include most of the required information.

Employers should look out for:

• Gaps in employment: Perhaps the biggest red flag to look for when reviewing an application is unexplained gaps in employment. An employer must fill in all employment gaps with verifiable information before making any hiring decision. Employers will confirm this during the interview process.
• Frequent job shifts: Why can’t the applicant seem to find the right employer? An unstable work history may be an indicator of larger problems with the applicant. Also, look for evidence of any pseudo employers listed.
• Names of supervisor(s) not listed: A prospective employee who fails to name specific previous managers or supervisors on an application may be attempting to hide a poor or unsafe work history. As a matter of company policy, an employer should ask applicants to not only list the names of previous employers, but the names of their direct supervisors as well.

Other potential causes for concern include:

• More emphasis on earlier experiences or education than recent,
• Missing information,
• Reasons given for changing jobs, and
• Job history showing decreasing responsibilities.

Screening resumes and applications

• Resumes should not take the place of a thorough employment application.

Careful applicant screening is an essential skill for finding quality new hires. Companies should assume that when they receive resumes, applicants are only providing the information that puts them in the best light. While a resume can be used as a general screening tool, it should not replace a thorough employment application.

There are many advantages to mandating application forms, such as:

• Comparing resumes and applications for discrepancies in information;
• Evaluating writing style, grammar, and punctuation, especially if it matters for the position;
• Having all applicant information in a consistent format for comparison purposes;
• Providing information that may be missing from resumes;
• Learning an applicant’s attention to detail and ability to thoroughly complete paperwork;
• Understanding how serious the applicant is about the position via the care put into their application; and
• Requesting an applicant’s signature that all information provided is true (and if it isn’t, having grounds for termination).

Above all, it is important for employers to be consistent in the review process. They may receive applications from all applicants, but not resumes. Relying on a resume alone for some, but not others, may cause inconsistencies in comparisons.

What not to include on an application

• Employers must be careful when considering what to ask on an application.

Employment applications are an excellent way to collect information about applicants in a standardized format, generally making it easier to quickly identify which candidates meet the minimum qualifications for the position. Unfortunately, due to the volume of state and local employment laws, a generic job application can also be a minefield for information that should not be considered during the hiring process. Almost all states have restrictions on what can be asked in an application, and employers should be familiar with and comply with the laws of each state in which the application will be used.

If employers haven’t updated their job applications in a while, they should give them a thorough review and consider the following:

• Citizenship status: Questions about a person’s citizenship might suggest discrimination based on national origin. Therefore, employers should not ask whether an applicant is a U.S. citizen, but rather if the person is legally authorized to work in the U.S.
• Age: Questions that request a person’s age, date of birth (DOB), or date of high school graduation should be avoided. However, asking whether a person is at least 18 years old or has the necessary work permit is acceptable.
• Criminal record: In multiple states, as well as individual counties and municipalities in states without a statewide law, ban-the-box legislation limits when employers may ask about criminal records, often prohibiting inquiries about convictions until the initial interview or job offer. This means the application may not ask, “Have you ever been convicted of a crime?” or any variation thereof.
• Social Security Number (SSN): While federal law does not prohibit employers from asking for a SSN on employment applications, it is best avoided due to privacy concerns, such as identity theft. Because such information is generally necessary for a proper background check, it is best to limit a SSN or DOB to the background check authorization form, and then limit who has access.
  • Some states have laws with specific requirements for protecting individuals’ personal information, so employers should ensure their recordkeeping practices are compliant.
• FCRA disclosure: Under the Fair Credit Reporting Act (FCRA), before employers can obtain a background check report from a third-party vendor, they must provide applicants with a disclosure stating that their company may obtain such a report for employment purposes, and applicants must authorize the check.
  • The FCRA disclosure and authorization, however, must remain separate from an application. The Federal Trade Commission has warned that the form should not include any extraneous information.
    • For example, the authorization should not include a waiver that releases the employer from liability for any inaccuracies in the report.
• Salary history: “What is your current salary?” was once a common job interview question, but an increased interest in pay equity has inspired some state and local legislation prohibiting employers from asking applicants about salary history or using salary history to determine an individual’s compensation or benefits package.
  • Laws are changing quickly when it comes to asking about a job candidate’s salary history. Some jurisdictions prohibit any employer from asking about salary, while in others, the ban only extends to state agencies and departments.
    • The wording of such laws varies as well, with some states prohibiting employers from asking while others simply prohibit employers from refusing to hire, interview, promote, or employ applicants based on their decision not to provide salary history.
  • At least one state has contradictory laws, both banning:
    • State agencies from asking about salary, and
    • Local governments from banning asking about salary.
      • Employers should check all relevant state and local laws before deciding whether to ask candidates about their current or previous salary, and when in doubt, should avoid asking.

What to ask

• Behavioral questions work best for interviews.

When interviewing an applicant, behavioral questions work best. For example, an employer might say, “Tell me about a time when you handled an angry customer” to force candidates to recall a story about a difficult situation they handled.

The interviewer can expand on that and ask additional questions to elicit good information, such as:

• What was the problem?
• What did you do?
• Why did you do that?
• What was the outcome?
• What did you learn from that experience?

It is said that past performance is the best predictor of future performance, so finding out how applicants handled various situations in the past may be a good gauge of how they will perform in the future.

Additionally, interviewers can ask general questions to help determine if a candidate can perform the essential functions of a particular job, such as:

• What kind of job experience do you have?
• What aspects of your current job or previous jobs do you consider most crucial
• Of all the work you’ve done, what have been your biggest successes?
• What would you change about your current job?
• What aspects do you like best about your current job? Least?
• What are you looking for in your next job?

Questions to avoid

• Employers should avoid questions that are discriminatory or have nothing to do with a candidate’s ability to perform a job.

There are some questions that are never okay to ask before making a job offer (and in some cases, even after). These questions include:

• Marital status;
• Religion;
• Nationality
• Union membership;
• Political affiliations;
• If the candidate has ever filed a workers’ compensation claim or a lawsuit; and
• If the candidate has children.

These questions have nothing to do with the candidate’s ability to perform the job. Additionally, employers should avoid illegal questions that could elicit information that cannot be used in a hiring decision, such as gender, age, and race.

Unless there is a legitimate business necessity, the following questions should be avoided:

• Are you married? What is your maiden name? Do you wish to be addressed as Mrs., Ms., or Miss?
  • However, employers may ask if the applicant has ever worked under a different name for the purposes of reference checking.
• Do you have children, plan to have children, or are pregnant?
• How old are you? What year did you graduate?
  • However, employers may ask if applicants have diplomas or degrees, and if they are 18 years or older.
• What is your nationality, race, or religion?
• Have your wages ever been garnished? Have you ever declared bankruptcy?
• Do you own your own home? How long have you lived at this address?
  • Because some marginalized people may be less likely to own their own home, this has been cited as discriminatory.
• What type of discharge did you receive from the military?
• Do you have a disability?
  • Employers can ask if the applicant can perform the essential job functions and meet attendance requirements with or without reasonable accommodation.
• How often do you drink alcoholic beverages or take illegal drugs?
• Have you ever filed a workers’ compensation claim or lawsuit against an employer?
• Have you ever been a member of a union?
• What clubs, societies, and lodges do you belong to?
  • Employers should ask only about organizations that applicants consider relevant to their ability to perform the job.

While most of these questions are not specifically prohibited by law, they are generally avoided because they do not reveal information that employers require to evaluate job qualifications, and the information could be used for discriminatory purposes.

For example, questions about children might lead to gender discrimination claims if applicants allege employment was denied based on the presumption that they would require more leave for child care. Asking for age itself is not a violation, but the question may indicate an intent to discriminate. Employers cannot retaliate against individuals for engaging in activities that they have a legal right to do, such as filing a workers’ compensation claim, joining a union, or joining other organizations that the company might disapprove of (such as religious societies), and therefore might show an intent to discriminate by asking.

While these questions are not unlawful on their own, an applicant or enforcement agency might assume that the company had a discriminatory reason for requesting the information if there wasn’t a legitimate need for it. If candidates volunteer information that is not supposed to be asked about or used in the hiring decision, interviewers should simply:

• Tell them the information isn’t relative to the job and won’t be used in the hiring decision; and
• Get the interview back on track.

Employers should be wary of offering promises. It is not unheard of for a supervisor to tell candidates, “If you work out, you’ll be promoted in a year or two.” If they take the job based on that promise of advancement and it doesn’t happen, they could sue for breach of an oral contract, and could very well win.

Successful interviewing strategies

• Interviewers should follow the 80/20 rule when interviewing applicants.

To keep the interview process not only legal, but successful, interviewers should:

• Use a pre-scripted list of questions designed to help judge applicants’ qualifications, skill levels, and overall competence;
• Ask the same questions of each candidate to avoid discrimination issues, but prepare specific questions for individuals to explore their work history and education;
• Verify the information provided on the application or résumé and ask applicants to explain any gaps in employment history or excessive job hopping;
• Thoroughly describe the company and the position. Stress the good points about the job, but don’t mislead. Explain any aspects that may have presented problems in the past.
  • Some people welcome a challenge or are not intimidated due to successfully handling such issues in the past.
  • For others, it won’t be a good fit, but it’s best to know that at the outset before making a bad hire; and
• Let the applicant do most of the talking by follow the 80/20 rule, where the candidate does 80 percent of the talking and the interviewer does 20 percent.
  • Don’t feel the need to ask a question every time the candidate pauses. Silence will often encourage the candidate to offer more explanation.

It’s okay to take notes after each interview to remember who said what, but employers must be careful that what is written down won’t create liability for discrimination. For example, they shouldn’t write down a physical description based on race, national origin, or age to remember a candidate.

Virtual interviews

• Employers can use free services or vendors to conduct online interviews.
• Virtual interviews won’t make sense for every situation.

Because recruiting and hiring has been impacted by new capabilities of online communications, employers are increasingly choosing to conduct interviews virtually. Any company can conduct an interview online using services like Skype or FaceTime, and in some cases, these services are replacing preliminary phone interviews and allowing recruiters to get a better overall feel for an applicant’s demeanor. However, these free services can involve problems, such as a faulty internet connection, which can make for a frustrating, or even incomplete, interview.

Free services aren’t the only way to conduct virtual interviews. Some employers use vendors to administer their online interactions. Though the fees for services deter some employers, the costs may be justifiable for organizations that would otherwise pay for applicants’ travel costs.

Online interview vendors offer some significant advantages over free services, including:

• Increased accessibility for applicants, which typically require less bandwidth than video chat;
• Opportunity for an unlimited number of participants;
• Ability to record and save conversations securely; and
• Round-the-clock access to technical support.

Instead of virtual interviews, some employers ask applicants to submit a one-way interview by addressing a list of scripted questions in a video profile. In place of a first-round interview, some companies find these profiles to be quite convenient. They not only ensure that the same questions are asked of all applicants, but typically eliminate scheduling issues.

Though one-way interviews give employers the convenience of multiple reviews by decision makers, not all employers are convinced. The profile familiarizes the employer with applicants, but doesn’t give applicants the opportunity to get to know the organization, which can be an important part of the hiring process.

Virtual interviewing won’t always make sense, but in many situations, companies can find savings in both time and money. Taking the time to evaluate the potential benefits, even if limited to specific positions, might result in a considerable return.

When supervisors conduct interviews

• Employers must be careful not to accidentally invite a lawsuit before, during, or after an interview.

Interviewers have the potential to violate discrimination laws, and if managers responsible for hiring don’t have proper training, they could easily invite a lawsuit for the company. Anyone with hiring responsibility should know to avoid discriminating against individuals based on:

• Race
• Color
• Sex, including:
  • Sexual orientation
  • Gender identity
• Religion
• National origin
• Disability
• Age (over 40)
• Pregnancy
• Genetic information
• Union affiliation

In some state and local jurisdictions, individuals also can’t be discriminated against based on:

• Marital status
• Political beliefs
• Military discharge status
• Arrest and conviction records
• The usage of lawful products, including:
  • Cigarettes
  • Marijuana, in some states where it has been legalized

These lists are not exhaustive. Michigan, for example, prohibits discrimination based on a person’s weight.

Managers should be aware of the potential for blunders during small talk that often occurs before and after the interview. Just because the interview hasn’t officially begun doesn’t mean the laws against asking discriminatory questions don’t apply. For example, candidates might mention they had to find a sitter so they could attend the interview, and when they call to find out why they didn’t get the job, an untrained supervisor might say, “We just thought that with all your responsibilities at home, it might be difficult for you to travel as much as this job requires.” That statement alone could be grounds for a lawsuit.

In addition to knowing what not to say, supervisors or managers should know how to get the best results from interviews. Applications and résumés only give a limited amount of information, but an interview can reveal candidates’ attributes and show what they can bring to the table. Interviewers should realize that strong candidates who are interviewed after weak ones may appear even stronger, while the reverse is also true.

Hiring managers should understand that the process of avoiding discrimination extends beyond the interview. It starts when the interviewee is selected and extends until the statute of limitations for filing a discrimination claim based on failure to hire ends (typically one year). This could be an issue if a candidate who was interviewed, but not chosen, calls and questions the hiring process. What is said to the applicant is critical should the need arise to defend a hiring decision.

Interview notes can be trouble

• Employers should never write down something that could be construed as discriminatory.
• Employers should use clothing as safe reminders.

While it is a good idea to take notes during an interview, interviewers should be careful about the type of notes taken. It is best not to write down anything that could be construed as discriminatory, including personal characteristics, such as:

• Tall Black man
• Short Asian female
• Stutterer
• Older female

These can easily be construed as evidence of discrimination if that individual is not hired or considered for the position. It is also a good idea to avoid any notes that may be construed as biased towards or against someone, such as:

• Housewife
• Student
• Knows the owner

Although the intent in writing these notes may be completely innocent, employers don’t want to have to defend the notes taken, and describe what the thought process was, months or years down the road if the company is sued.

Instead, concentrate on other descriptions such as clothing (green dress, red-and-blue paisley tie), since these are an individual’s temporary features rather than personal characteristics. These types of memory-jogging notes are not only good reminders, but also not likely to get a company in trouble.

Finishing the interview

After the interview, employers should:

• Thank the candidate and explain when a decision might be reached or, if there are further steps, what the next step will be;
• Indicate when the applicant can expect to hear from the company;
  • Be sure to follow up as promised, otherwise the organization will lose credibility; and
• Close each interview by walking applicants out and asking how they felt about the process;
  • Feedback is helpful for refining the interview process, and in turn, they will feel valued.

Getting the most out of phone screening interviews

• Interviews should be brief and focus on questions for the applicant.
• Employers should save in-depth questions for an in-person interview.

Interviewing can be an arduous process, not only for employers and their hiring managers, but also for job applicants. Creating a streamlined process for screening candidates that is respectful of all parties involved can save employers both time and resources, and may have the added benefit of making a good first impression on applicants.

Many companies conduct phone interviews as part of the initial screening process, but these calls are not always used to their most effective advantage. To efficiently use phone interviews to identify top candidates from the wider field of applicants, employers should:

• Keep it short. They should strive for a brief interview, no more than 30 minutes. A good outline is to:
  • Spend the first five minutes explaining a little bit about the organization and where the open position fits within the company;
  • Spend the next 20 minutes on questions for the applicant; and
  • Spend the last five minutes answering any questions the applicant might have.
    • Employers should remember that the phone interview is just the first step to help identify final candidates, not to make an actual hiring decision, so they shouldn’t worry about trying to conduct a complete interview in a short time and should save more in-depth questions for an in-person interview.
• Confirm qualifications. The screening interview should confirm whether the applicant has the minimum required qualifications for the open position.
  • Employers should review the applicant's resume and ask for any clarification on the person's skills or experiences as they relate to the position.
• Clarify expectations. This is a good time for employers to get a feel for what the applicant might be expecting from the job and ensure it matches their expectations of a candidate. Often, such discussions are about:
  • Environment;
  • Fit; and
  • Salary.
    • Employers should confirm that their compensation is in the applicant's expected range.

Two questions that often reveal interesting insight into an applicant's expectations are:

• Why are you leaving your current job?
• What interests you about this job?

Employers may discover that the applicant wants to leave an environment that is very similar to the one offered at their company, or they could find that the applicant has a misunderstanding of the duties involved in the open position. Using the phone screening as a brief conversation to confirm that employers and applicants share an understanding of the position’s opportunities and expectations will give both parties the chance to confirm or reevaluate their interest before the process continues.

Interview questions can help weed out low performers

• Employers should be on the lookout for negativity, refusing accountability, and difficulty.

Sometimes, employers hire candidates who seem perfect for the position, only to later discover they do not measure up on the job. Initial impressions aren’t always correct, and although employers have tried to avoid forming falsely positive impressions based on a candidate’s experience and education, the fact that the employee didn’t work out suggests that they may have missed something during the interview. Their interview questions may need adjustments to highlight characteristics like negativity, refusing accountability, and difficulty.

Negativity

Employees who fail to meet expectations are not always pessimistic, but individuals with a negative or pessimistic outlook are often more likely to:

• Be low performers;
• Resist changes;
• Focus on the “down-side” of a situation;
• Create a self-fulfilling prophecy of failure; and
• Drag an entire team down.

In broad terms, a negative person is more likely to view a change in procedure or a difficult situation as a problem to endure, rather than a challenge or opportunity to overcome. While employers shouldn’t expect most candidates to view a difficult situation as an exciting adventure opportunity, they should look for an expression of willingness to face a challenge and deal with a situation realistically. They should be especially wary of candidates who merely complain about a situation.

Employers might identify this characteristic by asking candidates questions about:

• How they handled a difficult situation, and
• How they react to changes or challenges.

Ideally, a candidate will indicate that they adapted to the situation and, even if they disagreed with the change, they accepted the reality of the situation and moved on. In contrast, a negative person may have:

• Responded to a difficult situation with exasperation and resistance, rather than acceptance, and
• Remained focused on things they could not control, rather than on things they could control.

As an example, employers might ask candidates to describe a situation in which a new procedure was adopted that required them to learn a new process. Ideal candidates might indicate that they accepted the change and worked to learn the new process quickly, perhaps even assisting others. Conversely, a negative person might indicate they never understood why that change was made. They may even express their feelings by referencing others, perhaps saying that coworkers at that company disagreed with the change.

Refusing accountability

Employees who refuse to take responsibility for their actions can become a nightmare for their supervisors. A supervisor’s efforts to address performance or conduct problems may be met with self-justifying statements or attempts to place blame on others, rather than an honest willingness to work toward improving the situation.

Few people are willing to voluntarily admit their errors, but employees who are confronted with a problem should at least be willing to acknowledge their role and take responsibility for helping to resolve the situation. Employees who are less likely to improve:

• Insist it “wasn’t my fault;” or
• Blame their circumstances, while refusing to acknowledge their ability to influence those circumstances.

Interviewers may be able to identify this characteristic by asking candidates to describe a previous conflict with a coworker or supervisor, how it was resolved, and how they reacted. Ideal candidates might acknowledge that a failure in communication caused a problem and explain their efforts to resolve the situation.

Conversely, candidates who refuse to accept responsibility may:

• Describe a situation where someone else was the problem;
• Blame the other person for any failures in the resolution process; and
• Use “I” or “me” pronouns instead of “us” or “we.”
  • For example: “I don’t know why she hated me” instead of “We had several meetings to discuss our project and assign responsibilities.”

Difficulty

A difficult person is one who:

• Blows things out of proportion;
• Becomes upset by even minor challenges;
• Will react negatively to perceived slights even when no offense was intended.

No matter how technically competent candidates might be, employers don’t want difficulty in their company. This tendency might be identified through interview questions regarding negativity and refusing accountability. For example, if candidates are asked to identify a conflict and how it was resolved, the nature of the conflict selected might provide clues about:

• What they consider problematic;
• If the dispute was petty; or
• If they have experienced many conflicts.
  • These may indicate that they are easily overwhelmed.

Interviewing people with disabilities

• Employers should interview people with disabilities the same way they would people without them.

The Americans with Disabilities Act (ADA) became law in 1990. One of its main purposes was to remove barriers to employment for people with disabilities. The ADA Amendments Act became law on January 1, 2009, and fundamentally broadened the definition of “disability” to encompass more individuals.

The law requires employers to accommodate qualified individuals with disabilities. To do so, employers must engage in an interactive process, which is a give-and-take discussion with individuals with disabilities to determine if they can perform the essential functions of the job with or without accommodation. If accommodation is necessary, the parties involved should work together to find an acceptable solution. Employers must accommodate not only employees, but job applicants during the hiring process.

Discrimination may occur because interviewers make decisions based on stereotypes, misconceptions, or unfounded fears. Employers should remember that “disability” does not mean “inability,” and they should concentrate on what they can do, not on what they can’t.

In preparing to interview candidates with disabilities, employers should use a structured interview guide that is the same for every applicant and remember to:

• Focus on candidates, not their disabilities, if they have an obvious disability or reveal it during the interview;
  • Though, employers may ask them to describe how they would perform the job;
• Treat them with the same respect given to any candidate;
• Hold them to the same standards as all applicants;
• Ask only job-related questions regarding the job for which they are applying; and
• Concentrate on their technical and professional knowledge, skills, abilities, experiences, and interests.

Often, one of the biggest fears in interviewing people with disabilities is not knowing how to act during the interview. The best advice is to let them describe any assistance they may need. Employers should follow common courtesies and considerations, such as:

• Look directly at them even if there is an interpreter;
• Don’t automatically assume they need assistance;
  • Employers should be sure to ask first;
• Don’t express sympathy;
  • They don’t want pity. They want to highlight their relevant abilities;
• Don’t avoid questions asked of other applicants out of fear that they may be sensitive to it; and
• Ask all questions in a direct manner, such as, “Can you lift 25 pounds?”

In most respects, interviewing people with disabilities is the same as interviewing people who are not disabled. Interviewers should ask job-related questions that focus on qualifications, experiences, and skills. Individuals with disabilities say they want to be treated as any other employee.

Online education

• Employers should not automatically discount applicants just because they received their degree online.
• Online education might yield greater diversity than a traditional classroom.
• Employers should always check that online institutions are accredited.

Years ago, the chance that employers would encounter a candidate with an online degree on their résumé was slim. Today, students can earn a myriad of different types of degrees online following the same curriculum as on-campus students, sometimes from prestigious institutions. While there are some inferior or even illegitimate “diploma mills” out there, online education has the potential to supply a student with an education as valuable as one obtained in the traditional classroom.

The odds of seeing job applicants with online degrees has increased significantly in the past decade, especially in the fields of business/management and computer/information science, where the most online degrees are earned. Employers should consider giving applicants with online degrees the opportunity to prove the worth of their education by asking for examples of experiences and samples of their work.

Social skills and diversity

One argument against online learning is that individuals who get their education online aren’t forced to develop their social skills and interact with others in the same way they would in an actual classroom. While that may be true for some students, people may cultivate those skills in other ways, and the interview is a prime forum in which to find that out. For example, someone who pursued a degree online while working may possess even more compelling communication skills than someone who is fresh out of a four-year conventional brick-and-mortar institution.

Additionally, depending on the nature and caliber of the candidates’ online degrees, their virtual interactions with other students could include discussing business-related issues with people all over the world. In this way, online students may even have an advantage by having interacted with a more diverse group of individuals than they might have in a traditional classroom.

Consider the reasons behind the degree

When assessing the value of candidates’ online degrees, employers should consider why they chose to pursue a degree online. Many individuals do so not to avoid the traditional classroom, but to balance education with other responsibilities, such as a busy career or a family. By considering why the candidates sought a degree online, a company might become aware of characteristics they possesses that could make them a good fit for the organization.

For example, a mother with full-time childcare responsibilities or a working professional who pursued an online degree likely needed considerable skills that could be valuable characteristics in the workplace, such as:

• Organization
• Focus
• Self-motivation
• Time management
• Multi-tasking
• Confidence
• Determination

Evaluating online education

Employers shouldn’t dismiss the applications of potentially good employees solely because of the way they obtained their degrees. The goal should always be to hire the best and the brightest talent available, and this could mean an individual with a traditional education or an online one. If considering an applicant with an online degree, employers should keep in mind that not all online universities are created equally. It may take some legwork to determine which online degrees and universities are both legitimate and valuable to the organization.

Accreditation status

For traditional brick-and-mortar institutions, most employers are familiar enough with the individual schools that they don’t need to turn to official ratings. However, since some online schools may not be as recognizable, turning to a school’s accreditation status can help. Accreditation is a process that evaluates a school’s:

• Mission
• Goals
• Resources
• Admission requirements
• Quality of faculty and educational offerings

Unfortunately, just as there are a few less-than-reputable online colleges and universities, there are also phony accrediting agencies. Sometimes, these are even created by counterfeit institutions to sanction themselves. However, both the U.S. Department of Education and the Council for Higher Education Accreditation:

• Maintain lists of recognized accrediting agencies in the United States, and
• Allow employers to determine which institutions have been accredited by approved agencies.

Researching accreditation can help identify institutions that are little more than “diploma mills.” These are schools that:

• Grant degrees without requiring that students complete an adequate course of study;
• Won’t receive reputable accreditations;
  • When an institution meets accreditation standards, this will be expressly clearly—employers should beware of phrases such as “chartered,” “licensed,” or “authorized.”
• Might issue fake degrees from real institutions.
  • Employers should always double-check applicants’ credentials.

The number of students choosing online education is growing, so instead of missing out on talented employees who choose a virtual path to education, employers should take some time to evaluate online institutions. Checking schools’ accreditation and applicants’ credentials can help ensure that an individual’s degree comes with a reasonable expectation of quality.