Public Safety: Best Practices in Hiring A Resource Guide for Connecticut Municipal Public Safety Agencies Presented in partnership by: Public Safety: Best Practices in Hiring - A Resource Guide for Connecticut Municipal Public Safety Agencies © December 2016, Connecticut Interlocal Risk Management Agency. All Rights Reserved. This book or any part thereof may not be reproduced, transmitted, or stored in any type of retrieval system by any means, electronic or mechanical, without prior written consent of Connecticut Interlocal Risk Management Agency (CIRMA). This book is intended for the exclusive use of the members of the CIRMA and for the employees of its members. 1st Printing - December 2016 This publication is intended for general purposes only and is not intended to provide legal advice. If you have questions about particular legal issues or about the application of the law to specific factual situations, CIRMA strongly recommends that you consult your attorney. PUBLIC SAFETY: BEST PRACTICES IN HIRING A Resource Guide for Connecticut Municipal Public Safety Agencies PRESENTED IN PARTNERSHIP BY: QUESTIONS? Contact FordHarrison attorneys on the CIRMA Employment Practices hotline: 844-426-9086 or [email protected] ACKNOWLEDGEMENTS Michael J. Rose, Office Managing Partner, FordHarrison LLP Johanna G. Zelman, Partner, FordHarrison LLP Pamela Keyes, Vice President of Risk Management and Business Analytics, CIRMA George Tammaro, Risk Management Services Manager, CIRMA Joey Barbera, Risk Management Program Specialist, CIRMA Steve Pendl, Risk Management Consultant Emmet Hibson, Director of Human resources, Town of Fairfield Chief Thomas Kulhawik, Chief of Police, Norwalk Police Department Chief Christopher Arciero, Chief of Police, Canton Police Department Chief Brett Mahoney, Chief of Police, Waterford Police Department Chief Denise McCarthy, Fire Chief, Fairfield Fire Department Chief David Dagone, Retired Fire Chief, Mansfield Fire Department Deputy Chief Beau Thurnauer, Deputy Chief of Police, East Hartford Police Department Deputy Chief Robert Davis Jr., Deputy Chief of Police, East Hartford Police Department Lt. Tim Silva, Lieutenant, Waterford Police Department Lt. Brian Klett, Lieutenant, Rocky Hill Police Department Page | i TABLE OF CONTENTS PAGE INTRODUCTION………………………………………………………………………………. 1 SECTION 1: INITIATING THE HIRING PROCESS……………………………………….. 1 A. The Announcement…………………………………………………………...…... 1 B. The Application………………………………………………………………..…. 5 SECTION 2: RECRUITMENT AND DIVERSITY…………………………………………... 6 A. How To Obtain A Diverse Pool………………………………………………....... 6 B. Affirmative Action Plans……………………………………………………......... 6 C. Flexibility In Hiring………………………………………………………………. 8 SECTION 3: TESTING AND ACCOMMODATIONS………………………………………. 8 A. Types of Tests Given To Applicants………………………………………........... 8 B. Testing Needs To Be Necessary & Reasonably Related To The Job Duties……... 9 C. Applicant May Be Entitled to Accommodations In The Testing Process………. 10 SECTION 4: COMPILING THE ELIGIBILITY LIST AND DECIDING WHO TO HIRE……………………………………………………………………………………............. 11 A. The Eligibility List………………………………………………………………. 11 B. Notifying Candidates About The Eligibility List………………………………... 11 C. Deciding Who To Hire From The Eligibility List……………………………… 11 D. Candidates Who Remain On The List…………………………………………... 12 SECTION 5: THE INTERVIEW……………………………………………………………... 13 A. Timing…………………………………………………………………………… 14 B. What To Ask During The Interview…………………………………………….. 15 C. What Not To Ask During The Interview………………………………………... 15 Page | ii SECTION 6: THE CONDITIONAL OFFER OF EMPLOYMENT……………………….. 16 A. What The Conditional Offer Must Contain……………………………………... 16 B. Fair Credit Reporting Act……………………………………………………….. 16 C. Testing That Requires A Conditional Offer……………………………………...18 D. Retracting The Conditional Offer……………………………………………….. 23 SECTION 7: LATERAL TRANSFERS/HIRES…………………………………………….. 25 A. What Testing Process They Should Undergo?..………………………………… 25 B. Hiring Process For Laterals And Transfers……………………………………... 26 SECTION 8: CONFLICT AT THE ACADEMY……………………………………………. 27 SECTION 9: EMERGING ISSUES………………………………………………………….. 27 A. Medical Marijuana ……………………………………………………………… 27 B. Mental Stability………………………………………………………………….. 28 C. Gender Identity and Sexual Orientation………………………………………… 28 D. Social Media…………………………………………………………………….. 29 E. Age………………………………………………………………………………. 29 F. USERRA………………………………………………………………………… 30 G. Quo Warranto/Mandamus……………………………………………………….. 32 H. Physical Agility/Physical Fitness Tests and Disparate Impact on Women……... 33 I. Nepotism………………………………………………………………………… 33 SECTION 10: OTHER IMPORTANT STATE AND FEDERAL LAWS…………………. 34 A. Connecticut Municipal Employees Relations Act….…………………………… 34 B. Constitutional Issues During Hiring…………………………………………….. 34 Page | iii REFERENCES…………………………………………………………………………………. 36 Appendix A: Important Connecticut Statutes…………………………………………… 37 Conn. Gen. Stat. § 7-291a……………………………………………………….. 38 Conn. Gen. Stat. § 7-291c……………………………………………………….. 39 Conn. Gen. Stat. § 31-40x……………………………………………………….. 40 Conn. Gen. Stat. § 31-51g……………………………………………………….. 43 Conn. Gen. Stat. § 31a-51i………………………………………………………. 44 Appendix B: Cited Case Law………………………………………………………........ 47 Skinner v. Ry. Labor Exec. Ass’n., 489 U.S. 602 (1989)………………………... 48 Nat’l Treasury Emps v. Von Raab, 489 U.S. 656 (1989)……………………….. 72 Stratford v. Am. Fed’n of State, Cty. & Mun. Emps., Council 15, Local 407, 315 Conn. 49 (2014)………………………………………………………… 87 Cox v. Onondaga Cnty.. Sheriff’s Dep’t, 760 F.3d 139 (2d Cir. 2014)………… 99 Appendix C: Examples………………………………………………………………… 125 Letter of Conditional Offer of Employment…………………………………… 126 Letter Retracting Conditional Offer of Employment (where FCRA does not apply)……………………………………………... 127 Fair Credit Reporting Act Sample Documents………………………………… 128 Authorization to Conduct Post-Conditional Offer Testing (where FCRA does not apply)……………………………………………... 146 EEO Statement…………………………………………………………………. 147 Page | iv * Legend: Indicates for Police only Indicates for Fire only Indicates more information on this topic can be found in the FordHarrison Labor and Employment Sourcebook. The FordHarrison Labor and Employment Law SourceBook is a comprehensive, yet concise, arsenal of labor and employment information to provide reference on a variety of labor and employment topics. To access the Sourcebook, please click here and use the search tool to quickly locate the topic on which you seek more information. Username: Public-Safety-Hiring Password: sourcebook1617 **This guide is intended to be for informational and educational purposes only and does not constitute legal advice. If you have any questions about the content of these materials, or are in need of legal advice, please contact Michael J. Rose, Robin Kallor or Johanna Zelman, Partners in FordHarrison’s Hartford Office at 860-748-4660, or the FordHarrison attorney with whom you usually work. Page | v INTRODUCTION Although local governments generally operate in a heightened state of awareness about the potential for claims or charges arising from the termination of an employee, the possibility of lawsuits arising from the recruiting and hiring process draws less attention. But recruiting and hiring procedures can generate claims from unsuccessful applicants, specifically, in desired fields such as law enforcement and public safety. In addition, employees who initiate lawsuits concerning later phases of their employment often reach back to the hiring process in an attempt to show systemic or long-term unlawful practices. In order to limit potential claims and charges, municipalities should exercise diligence in all employment practices, including the recruiting and hiring processes. This Guide will provide general best practices for recruiting and hiring employees in public safety positions of municipal entities. SECTION 1: INITIATING THE HIRING PROCESS The beginning of any hiring process begins with a vacancy. When a vacancy is identified, the hiring process begins. Most, but not all, municipalities have a classified service under which strict rules must be followed and from which there can be no deviation. However, these policies and procedures will vary by municipality. Moreover, some municipalities may adopt the Merit System set out by Conn. Gen. Stat. § 7-407, et seq. by act of the governing body to govern hiring in the civil service. If the municipality has adopted this Merit System, all hiring decisions must be in compliance with the statutes as well as any local civil service rules. It is advised that the municipality should make it known to applicants if civil service rules will be followed during the hiring process. This guide provides a general overview of the hiring process for municipalities both with and without civil services rules. A. THE ANNOUNCEMENT • There should be an announcement. • Notice – Most civil service rules require at least 21 days’ notice.1 1 For promotional opportunities, employers should also be aware of any posting requirements in the relevant collective bargaining agreement that may require a longer posting period or an internal posting for a specified time before the posting is made public. Page | 1 • Content – The announcement should provide the closing date for applications. If a specific application form is required, the announcement should provide information about where the application for the position can be found. The announcement should also specify what other information and/or documents are needed