Southwest Florida Employment Law Blog : Southwest Florida Employment and Labor Lawyers & Attorneys for Discrimination Lawsuits and Civil Rights Cases in Fort Myers, Bonita Springs & Sanibel FL

Yesterday, the EEOC issued a new Enforcement Guidance on use of arrest and conviction records in hiring decisions.  Among other things, the Guidance addresses best practices for employers who use criminal background information in hiring decisions.  

The Guidance has already been covered in detail by many of my fellow bloggers.  For more information, check out Dan Schwartz's post on the Connecticut Employment Law Blog.  Also check out Jon Hyman's post on his Ohio Employer's Law Blog.  If you'd like to read the Guidance itself, download it here.

I'll leave you with Section VIII, the "Best Practices" section of the Guidance, which I think is helpful:

General

• Eliminate policies or practices that exclude people from employment based on any criminal record.
• Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.

Developing a Policy

• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
• Identify essential job requirements and the actual circumstances under which the jobs are performed.
• Determine the specific offenses that may demonstrate unfitness for performing such jobs.  Identify the criminal offenses based on all available evidence.
• Determine the duration of exclusions for criminal conduct based on all available evidence.  Include an individualized assessment.
• Record the justification for the policy and procedures.
• Note and keep a record of consultations and research considered in crafting the policy and procedures.
• Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.

Questions about Criminal Records

• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.

Confidentiality

• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
   

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I grew up celebrating Easter, but when I was young, I never cared much for the goodies I discovered in my Sunday morning Easter basket.  My brother, on the other hand, always didhe was more than happy to eat his hollow chocolate bunny, dozens of Marshmallow Peeps (both his and mine), and all the jelly beans that slipped through the "grass" to the bottom of his basket.  Eventually, I convinced my mom the traditional items were not my favorites, but I liked plenty of other treats.  From that year forward, my basket was improved. 

In life, some of us are lucky enough to like what we find in our basketsEaster or otherwise, while others must initiate change to find similar levels of satisfaction.  On this Good Friday, I offer the following five new hire suggestions, to better ensure you like what you find in your HR basket:

1.         Review your interview process and questions.  The process must not disparately impact protected classes, and the interview questions must be equally lawful and appropriate.  Doing so can mitigate the risk of discrimination suits.

2.         Conduct a carefully defined background check, assuming the potential new hire passes the interview.  Doing so can mitigate the risk of negligent hiring suits and potential vicarious liability from improper actions of unscreened employees.

3.         Review the job description and classification of the potential new hire (exempt or non-exempt).  If exempt, document why; and, if non-exempt, reaffirm the method of capturing time worked and properly calculating overtime.  Doing so can mitigate the risk of FLSA wage and hour claims.

4.         Provide the new employee with an up-to-date employee handbook and, equally important, provide the new employee adequate time to read it that day, ask questions, and sign an acknowledgement of understanding and agreement to comply.  Doing so can mitigate the risk of all kinds of employment-related suits, assuming the employer also knows and adheres to the protocols set forth in the handbook.

5.         Conduct sexual harassment and discrimination training.  Ensure the new employee, as well as supervisors, are properly trained and sign acknowledgements of understanding and agreement to comply with the company's harassment and discrimination policies.  Doing so can mitigate the risk of sexual harassment and discrimination charges and/or lawsuits.

If this is already how your basket looks, continue enjoying Marshmallow Peeps like my brother always did. If not, let this message be the impetus for your change; and, hopefully next year you will find an improved HR basket, having done what you can to mitigate the front-end risks associated with hiring a new employee.

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Is hiring back on at your company?  I hope so!  With unemployment in Southwest Florida at its lowest level in three years, and with the economy showing signs of life, I wanted to take a minute to highlight an article on hiring I read in this month's Gulfshore Business.

In Hiring Smart:  5 Questions to Ask Job Candidates in 2012, Lori Johnston, with help from Lori Burke of INgage Networks (an HR Law & Solutions Hall of Famer!) and Libby Anderson of Human Resources Now, suggests five questions to consider asking potential candidates in 2012:

*How did you maintain your skills when you were unemployed?

*What other types of jobs are you looking for?

*Why is this job of interest to you?

*Tell me about a weakness you had in your past work performance and how you strengthened it?

*How did you overcome a conflict with a co-worker?

These questions would be a great addition to your list.  Check out the full article here.  For more interview questions, take a look at 17 Interview Questions Hiring Managers Love to Ask and Ask Right to Hire Right:  Effective Interview Questions.  Always remember to avoid questions that are related to any potential protected class, such as an applicant's age, race, religion, national origin, or marital/family status.  Happy hiring!

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