RECRUITMENT AND SELECTION OF SCHOOL EMPLOYEES WITH AN EMPHASIS ON REFERENCE CHECKING
Presented to:
2015 MASBO Annual Conference
May 14, 2015
Presented by:
James K. Martin Booth Law Group LLC 10520 Wayzata Boulevard Minnetonka, MN 55305 Phone: 763-253-4155 Cell: 612-581-8450 Fax: 763-253-4160 e-mail: [email protected]
This presentation was prepared by Booth Law Group LLC. It is not intended, nor should it be used, as a substitute for specific legal advice or opinion since legal counsel may only be given in response to inquiries regarding particular factual situations.
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RECRUITMENT AND SELECTION OF SCHOOL EMPLOYEES
I. INTRODUCTION
In today’s school environment, there are high stakes related to school performance. Significant costs, financial and otherwise, arise when hiring mistakes are made. As a result, it is more important than ever that as an employer, schools hire the right person for a given position. This outline discusses how schools can limit their exposure to liability in the selection process and increase the potential of hiring the best candidate.
A. Legal Considerations
Steps taken in the recruiting and hiring process should be legal and non-discriminatory.
1. Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act, Minn. Stat. Chap. 363A prohibits hiring decisions made upon the basis of protected classifications race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation or age.
2. During the selection process employers may not require or request a candidate to furnish information that pertains to any protected classification. Minn. Stat. Section 363A.08, Subd. 4.
3. Steps should be taken to ensure that the staff hired does not pose a threat or risk of harm to students, staff or members of the public that could give rise to claim of negligent hiring.
B. Practical Considerations.
Steps in the hiring process should be designed keeping in mind the philosophy that “past performance is the best indicator of future performance.”
II. LAYING THE GROUNDWORK FOR SUCCESSFUL HIRING
A. Establishing the vacancy.
1. Conduct a Job Analysis/Develop or Modify the Job Description
a. A job analysis should be conducted at the time a new position is established.
b. A job analysis is strongly recommended each time a vacancy occurs.
c. A job analysis should identify the basic requirements of the job.
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2. Job Requirements
a. Identifying essential job functions lays the groundwork for reviewing applications, resumes, and developing interview questions.
b. Identifying essential job functions provides a framework for hiring based upon relevant, legal criteria.
c. Identifying essential job functions provide a basis to limit exposure to liability for disability discrimination.
d. Consider preferences for the position such as experience, level of education and other preferred qualifications for the position.
e. Consider requirements for the position such as professional training and/or licensure.
B. Advertising/Recruitment
1. Recruitment/Advertising methods vary from organization to organization.
2. Recruitment/Advertising methods vary depending upon numerous factors:
a. Type of job to be filled.
b. Labor market conditions.
c. Budget.
d. Equal employment and diversity hiring objectives.
e. Preferred methods of advertising include newspaper, internet, employer’s website, and referrals.
f. Building a recruiting “network” can yield a pool of qualified candidates in hard to fill positions. Develop relationships with sources for candidate pools.
3. Recruitment/advertising practices must be in compliance with the law.
a. Avoid references to protected classifications.
b. Examples:
i. Avoid references to age such as, requesting applications from “recent college graduates” or looking for candidates who wish to work for a “young, energetic” organization or "retiree wanted for part-time employment".
ii. Avoid references to gender, such as "salesmen" or "housewives".
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III. APPLICATION PROCESS
A. Application Forms
Job application forms vary in scope and design. The primary purpose of a job application is to obtain basic information about job applicants that indicates whether or not they are at least initially qualified for employment. Job application forms should be limited to requesting relevant, work related information and should avoid requesting or requiring an applicant to provide information related to their protected class status.
1. General Personnel Data
a. Name
b. Address
c. Telephone, cell phone, e-mail
d. Any information about age should be limited to inquiries to determine if the applicant is of minimum legal working age.
e. Whether or not the applicant is eligible to work in the United States.
2. Knowledge and Experience
a. Work history
b. Education (dates of graduation should not be requested)
c. Other relevant skills
d. Membership in relevant, work related organizations
3. References.
4. Acknowledgements and Certification.
a. Representation that the information provided by the applicant is accurate with the acknowledgement that any falsification or omission can result in rejection or discharge.
b. Authorization to conduct reference checks
c. Agreement to abide by the employer’s policies, rules, regulations
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5. Criminal history; but avoid blanket policy of prohibiting hiring of individuals with criminal history. Determine nexus of conviction of job being filled.
6. Status as a veteran for purposes of the Minnesota Veterans’ Preference Act.
a. Minn. Stat. Section 197.455 requires preference be given to applicants who are veterans.
b. Political subdivisions must adopt a 100 point hiring system to enable application of veterans’ preference points. Hall v. City of Champlin, 463 NW2d 502 (Minn. 1990).
c. Veterans’ preference does not apply to the positions of “private secretary, superintendent of schools …or head of a department. Id.
d. 100 point system is optional for teachers but if 100 point system is not used for teachers all veterans who apply for a teaching position must receive an interview.
7. Other relevant, non-discriminatory inquiries.
a. Discharged or asked to resign from prior employment? If yes, explain.
b. Subject to investigation by previous employer? If yes, describe circumstances and outcome.
c. Subject to disciplinary action by former employer? If yes, describe the circumstances and outcome.
8. Inquiry about disciplinary action against teaching license in Minnesota and other states along with a statement that intentionally submitting false or incomplete information is grounds for dismissal.
9. Develop application review process that includes scoring forms to allow for objective evaluation of job applications.
B. Inquiries to Avoid
1. Race, Color, National Origin
a. birth place
b. citizenship (instead ask if eligible to work in the U.S.)
c. request for photo
2. Marital Status
a. maiden name
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b. information about spouse
c. emergency information
3. Disability
a. health history
b. history of work comp claims
c. inquiries related lifestyle which may illicit information showing future health risks or increased insurance costs, i.e. smoking.
4. Age
a. date of birth
b. dates of school attendance
5. Military Status
a. No inquiries about whether the applicant is a member of the Armed Forces Reserves or National Guard or any statement regarding such status as a condition precedent to employment.
IV. SELECTION PROCESS
A. Interviewing
1. Properly planned, the job interview portion of the screening process is a useful tool in predicting performance and hiring the proper person.
a. The job interview helps to fill in gaps in the applicant’s resume or job application.
b. The job interview allows the employer to describe features of the job, allowing the applicant to determine if the job is a good fit.
c. The job interview allows an applicant to describe previous work accomplishments for purposes of ascertaining future work performance.
2. Development of Effective Interview Questions.
a. Do not utilize questions that request/require applicant to provide information regarding his/her protected classification.
b. Interview questions should be job related and developed based upon job requirement identified in vacancy’s initial job analysis.
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c. Question should focus upon what the applicant has done rather than what the candidate will do. Past performance is a predictor of future performance.
d. In addition to learning about an applicant’s skills, interview questions should be developed to learn about what motivates an applicant and how an applicant makes and maintains relationships.
e. Interview questions should be open ended.
3. Conducting the Interview.
a. Use initial structuring statement.
b. Introduce interview team.
c. Inform applicant that you want to find out about him/her.
d. Inform applicant that you will be taking notes.
e. Inform applicant that there will be time to allow the applicant to ask a question.
4. Uniformity of Interview Questions.
a. Allows easier rating of candidates.
b. Limits potential exposure to liability for discrimination.
c. Some differences in questions are allowed and recommended.
5. Practical Tips.
a. Use the interview as a sales tool.
b. Accurately and realistically describe the job and the employer.
c. Highlight features of the employer.
d. Begin the training process.
e. Maintain a good relationship with all applicants who are interviewed.
f. Let the applicant know next steps.
g. Use the interview as an opportunity to learn about the applicant’s aptitude, experience and motivation.
B. Skill Testing
1. Not prohibited. Page 7 of 13
2. Stringent requirements to conduct pre-employment testing
a. Test only for "essential" job related abilities
b. Test is required for all applicants for the position, regardless of potential disability
c. Test accurately measures the applicant’s aptitude, achievement level or whatever factor the test purports to measure as opposed to an applicant's impaired sensory, manual or speaking skills.
C. Reference Checks
1. Reference Checking.
a. Use of reasonable care to hire safe and competent employees and to reject individuals who, because of the nature of the employment, pose a threat of injury to third parties.
b. Employers must conduct some minimal investigation of potential employees. Level of investigation is dependent upon the potential risk of harm to others.
c. Employers have a duty to retain only safe, competent employees and to conduct further investigation of an employee if previously unknown facts about the employee come to light.
d. Significant source of information regarding applicant’s previous job performance.
2. Reference Checking Practical Tips.
a. Previous employers, especially employers prior to most recent employment.
b. References not limited to those named by the applicant.
c. Investigate “gaps” in the employment record.
d. Criminal background check should be as extensive as possible. Consider a Social Security check.
e. See attached documents for suggested areas of inquiry.
f. Request information about public information pursuant to the Data Practices Act on applicant.
i. Has the applicant been subject to a complaint or charge?
ii. Did the applicant resign during the course of an investigation?
iii. Has the applicant been subject to discipline?
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iv. Would you rehire the applicant?
D. Check Certifications
1. Confirm Licensure through the MDE
2. For teachers and other license employees check with the Minnesota Board of Teaching or Minnesota Board of School Administrators for public information regarding action on an applicant's license.
E. Social Network Checks
1. Checking social network websites presents a high risk of inadvertently obtaining information that may taint the selection process such as protected classification information, photos, or other information regarding race, religion, gender, sexual orientation, etc.
2. Do not require applicants to provide social networking passwords.
V. POST OFFER SCREENING
A. Criminal Background Checks.
1. School Districts have a legal obligation to perform a criminal background check on all new employees. Minn. Stat. Section 123B.03.
2. Do not limit criminal background checks to those performed by the Minnesota Bureau of Criminal Apprehension (‘BCA”).
3. Do not allow an individual to begin working until the criminal background check is completed.
4. Compare results of criminal background check to response on job application regarding criminal history.
B. Drug/Alcohol Testing
1. Must have a written drug testing policy that complies with Minnesota law.
2. Pre-employment testing can be imposed as follows:
a. Conditional offer of employment
b. Testing is required for all applicants for the position.
c. Applicant given an opportunity to explain a positive result
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C. Medical Examinations
1. Pre-offer medical exams are prohibited
2. Post-offer medical exams are prohibited if the examination tests only for job related requirements
VI. JOB OFFERS
A. Develop a uniform process for presentation of job offers to avoid unintentionally entering in an agreement that is not "at will".
B. Provide written and signed “Agreement of Hire.” While not applicable to public sector employees, format of Minn. Stat. Section 181.55 may be useful.
C. When establishing starting wages/benefits, review to ensure compliance with relevant policies and/or collective bargaining agreements.
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Exhibit A
Reference Checking START WITH SOME BASIC QUESTIONS
Don’t forget the obvious. The answers to these questions might help give you the facts before you begin to dig into the background of the candidates. Tested survey techniques show that you can get more effective responses to a series of questions if you start with the simple ones. They are easy to answer, so there is no pressure on the respondent. The respondents are not challenged to give opinions. After introducing yourself, begin with these basic questions:
1. I’d like to verify the dates of employment, from ______to ______. 2. What type of work did he/she do? (Title?) 3. Were his/her earnings $ ______per ______? 4. Did that include bonus? Overtime? Incentives? 5. Who did he/she work for prior to joining your company?
TOUGH QUESTIONS To find the truth, you have to ask probing questions.
1. How does the candidate compare to the person who’s doing the job now? Or, what characteristics will you look for in the candidate’s replacement? 2. If he or she was that good, why didn’t you try to rehire him? Or, why don’t you try to induce him to stay? 3. When there was a particularly urgent assignment, what steps did the candidate take to get it done on time? 4. Since none of us is perfect at everything we do, please describe some of his or her shortcomings. 5. Have you seen the candidate’s current resume? Let me read you the part that describes his or her job with your organization. (Stop at each significant point, and ask the reference for a comment.) 6. Not all employees like everyone with whom they work. What kind of people did the candidate have problems with? 7. Has the candidate been subject to any complaints or charges while employed by your organization?**** 8. Did the candidate resign during the investigation of the complaints or charges?**** 9. Has the candidate been subject to disciplinary action while employed by your organization?**** 10. On the average, how many times a month is the candidate absent from work?**** And, how many times a month does he or she come in late, or leave early? 11. Who referred the candidate to your organization? (It could have been a relative or a customer or client.)
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12. When the candidate was hired, were his or her references checked thoroughly? Who checked these references? And what did the references have to say? 13. Would you rehire the candidate?
**** denotes key question to ask public employers regarding public information regarding former employee.
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Exhibit B
Sample Authorization and Release Form For Reference Checks
RELEASE AUTHORIZATION
I, (please print name) ______, hereby authorize investigation of any information contained in the Application for Employment and/or supplemental materials I have submitted in consideration for the position of ______, as may be needed to arrive at an employment decision. I authorize any or all education institutions and prior employers listed in the Application for Employment to provide information they may have concerning me as it may relate to consideration of my application for this position. I understand the school district will be contacting both individuals suggested by me and others whom I may not have suggested. I release those parties from any and all liability or claims for damage that may result from such.
This release supersedes any agreement I may have previously made to the contrary with any such person, school, employer, or organization.
A photocopy or facsimile of this signed release shall have the same force and effect as the original release signed by me.
______Applicant’s Signature
______Date
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