Many employers spend a great deal of time and money dealing with employees that should not have been hired in the first place. Often, this problem exists because the only measure of a hiring program's success is the speed by which an available position is filled. A truly efficient hiring program, however, hires people who do the job required without producing problems.
Managers who wish to have an efficient and successful hiring program ensure that they do the following things:
- 1.Job Specification. Define what the job really requires in terms of the required education, experience, physical capabilities and interpersonal skills.
- 2.Recruiting. Diversify the external sources of applicants to achieve the business benefits of diversity; include sources which specifically target women and minorities.
- 3.Selection. Interview only applicants who meet the minimum requirements established for the job; establish and document objective procedure for further winnowing of the applicant pool if there are too many qualified applicants to interview.
- 4.Application. Require that every applicant complete and sign an application for employment, even if the applicant has a typed resume.
- 5.Interviews. Avoid asking questions which directly elicit or may indirectly elicit EEO-related information; avoid personal questions which may be perceived as inappropriate and/or invasive.
- 6.Interviews. Develop a uniform list of job-related questions for each position to ensure consistency in questions and phraseology; focus on past experiences, job requirements, expectations for the future, as well as how applicant would handle specific workplace situations. Some sample questions can be found in the section entitled "Job Specific Behavioral Questions".
- 7.Interviews. Involve multiple persons in the interview process; ensure demographic diversity among the multiple interviewers.
- 8.Decision-Making. Avoid either the consideration or discussion of EEO characteristics or customer preferences related to the same in the decision-making process; consider and document only legitimate, articulable, job-related factors.
- 9.Decision-Making. Be aware that in the selection process the human tendency is to be comfortable with similarity and unconsciously uncomfortable with difference; and that differences in style, perspective and community contacts are beneficial to the business.
- 10.Reference Checking. Perform reference check prior to extending job offer; record of attempt should be documented, even if no response is received.
What You Can and Cannot Ask About An Applicant's Disability
"Failure To Hire" claims resulting from questions eliciting illegal information are common and expensive, even if the employer is the ultimate victor. The Americans with Disabilities Act ("ADA") specifically prohibits an employer from asking an applicant, either in writing on the application or orally during the interview process, whether he or she has any physical or mental disabilities. This prohibition applies even if the employer includes, as a follow-up question, an inquiry whether the employer can make any reasonable accommodations on the applicant's behalf.
Notwithstanding the ADA, the employer may ask an applicant whether he or she can perform, with or without accommodations, the essential physical and mental functions of the job for which the applicant has applied. The ADA requires that employers focus on the job responsibilities as opposed to underlying disabilities. However, if the employer asks a job function question on the application, a follow-up question must be included as to the nature of any accommodation which the applicant may require.
By asking for this additional information on the application, you run the risk that an applicant who indicates the need for an accommodation is rejected, assuming, and later claiming, the rejection was because the Company did not wish to make the accommodation requested or because of the undisclosed disability giving rise to the need for the accommodation. Therefore, it is preferable to inquire orally during the interview whether an applicant can perform the essential functions of the job. It is imperative that the interviewer ask the same question of each applicant interviewed.
Resume Scanning Software Raises New Discrimination Issues
In a time when it is common to receive hundreds of resumes for some positions but only a few from apparently unqualified applicants for others, many employers are using resume scanning software to aid in the review and sorting of resumes. Resume tracking software allows an employer to enter resumes into a database so that resumes may be searched for specific qualifications for which the employer is seeking. This can be beneficial when employers receive hundreds of resumes for one position to aid in the selection of the most qualified to interview or when they cannot get enough qualified applicants for a position and choose to review those they may have received for another position.
However, employers who use this type of software should be aware that the method is subject to legal attack. Recently, in Rivers v. The Walt Disney Corp., four African-American employees filed suit claiming that Walt Disney used resume scanning software to unlawfully discriminate against applicants and employees on the basis of race. The plaintiffs alleged that Walt Disney's method of screening resumes discriminated on the basis of race. They alleged that because of different cultures and backgrounds, African-American applicants are likely to use different "key words" on their resumes than white applicants. The plaintiffs further claim that since the resume tracking software is based on majority white culture and it searches for "key words" widely used within that culture, it discriminates against African-American applicants and employees. The case is still in litigation and the outcome is unclear at the present time.
However, like most technology, resume scanning software can be both beneficial and detrimental to employees. For example, although the software can help employers search many resumes quickly for the qualifications it is seeking, there could be an unintentional bias because the software can easily winnow out particular factors such as age and zip codes. Additionally, there is the potential for digital redlining, in which an employer could easily and quickly search for specific factors such as where an individual went to high school or his or her work history, which could reveal the person's approximate age. However, resume scanning software is gender and race-blind, compared with the process of manually searching resumes.
If you are using the resume scanning software or are considering using such software, keep the following in mind: when you are searching, make sure that the "key words" search for specific job-related data, which is the same information that the employer is focusing on throughout the entire hiring and selection process. You may also consider documenting your searches in case questioned in the future. Finally, it is important to train all human resource personnel and managers about not only the beneficial uses but also about the problems with misuses, and establish guidelines on its use.
Job Specific Behavioral Questions
As noted above in the context of disability discrimination, a common cause of poor hiring programs is that interviewers ask poor or illegal questions. This may occur because many employers rely on unskilled and untrained interviewers. This is particularly true where employers use peers or direct supervisors to do interviewing without first training them how to do that specialized job.
Very often innocent "warm up" questions venture into impermissible areas under equal employment laws. It is much more important for the interviewer to focus on the attributes of the candidate for the specific job in question and the general qualities required by the employer. Therefore, in addition to general questions about the applicant and his or her prior jobs, it is helpful to understand how the applicant has responded to specific workplace situations. We have compiled some job specific behavioral questions that may be helpful during the interviewing process:
Customer Service Orientation
How much internal customer interaction did you have at your last job? List a percentage of your time.
How much external customer interaction did you have at your last job? List a percentage of your time.
What skills or qualities are important for dealing effectively with internal customers?
What skills or qualities are important for dealing effectively with external customers?
Tell me about a time when you effectively handled an external customer complaint.
Tell me about a time when you effectively handled an internal customer complaint.
Tell me about the most you have ever done to satisfy an internal customer.
Tell me about the most you have ever done to satisfy an external customer.
Sooner or later, we all have to deal with an internal customer who has unreasonable demands.
Think of a time when you had an unreasonable request by an internal customer. What did you do?
Sooner or later, we all have to deal with an external customer who has unreasonable demands. Think of a time when you had an unreasonable request by an external customer. What did you do?
Problem Solving
Describe one of the best recommendations you have made to your manager/supervisor. What happened?
Describe the last time you had to make a difficult decision on the job.
What facts did you consider? How long did it take? What was the outcome?
We all make decisions that turn out to be mistakes. Describe a work decision you have made which turned out to be a mistake. How would you handle it differently now?
Walk me through a situation where you had to get information by asking a lot of questions of several people. How did you know what to ask? How did you get it?
Initiative
Give me an example of a time when it was necessary for you to take work home, work on a weekend or maintain unusually long hours.
What have you done differently from your peers?
Describe a situation in which you saw a problem and took action to correct it rather than wait for someone else to do so.
We all have experienced situations where there just isn't enough time to meet all of our customers' expectations. Tell me how you have handled such a situation. What work did you not do?
Collaboration
Describe a recent situation when you were able to help a peer or team member.
Describe a situation when you wish you had acted differently with someone at work.
When dealing with team members or a group, sometimes it is difficult to know when you are being overly demanding. Tell me about a time when you may have been overly demanding. What did you do?
When dealing with team members or a group, sometimes others don't carry their fair share or are overly demanding. Tell me about a time when a team or group member didn't carry his or her fair share or was overly demanding. What did you do?
Tenacity/Sales
Can you tell me about an experience when you persisted for a long period of time? With what result?
Sometimes it is difficult to know when to quit. Describe an experience when you were too persistent. What happened?
Tell me about one of your most successful sales experiences.
What kind of sales situations have given you the most trouble? How have you responded to the obstacle?
What is your philosophy on sales? What are the key ingredients of a sales pitch?
Organizational Fit
Tell me about a situation where you had to adjust quickly to a change in organizational, departmental or team priorities. How did the change affect you? What did you do?
Tell me about the manager/supervisor with whom you have had the most effective relationship. Describe your relationship. Why was the relationship so effective?
Working with people from diverse backgrounds or cultures can be a real challenge. Can you tell me a time when you faced a challenge adapting to a person from a different background or culture? What happened?
Leadership
Tell me about one of the toughest groups from which you had to garner support. How did you get it?
Tell me about a new idea that you introduced at a meeting. What approach did you take to get the others to accept it?
On average, how often did you meet with your employees as a group? Tell me about your last meeting. How did you prepare? What did you do at the meeting?
Tell me about the last time that an employee did not meet your expectations. What did you do? What did you say to him or her?
How have you kept track of assignments made to direct reports? Have you ever had a direct report not follow your instructions? How did you become aware of this? What did you do?
What would you do if you saw sexually-explicit material in the workplace?
Hiring Techniques To Reduce Violence in the Workplace
Violence in the workplace is a serious problem. Statistics suggest that more than 1,000 homicides and one million physical assaults occur at work each year. One of the most important ways to minimize violent incidents at work is to engage in preventive steps during the hiring process. These include criminal record checks, substance abuse testing, reference checks and interview techniques.
Criminal Record Checks
Conducting a criminal record check creates minimal exposure so long as employers inquire about convictions, not arrests. In Pennsylvania and in most other states, it is against public policy for an employer to consider any experiences an applicant has with the criminal justice system which fall short of conviction.
At a minimum, criminal record checks should be done for certain positions, such as security guards, evening supervisors who may be alone with a few people, and employees who must carry weapons. Whether an employer expands its criminal record checks beyond these types of positions is really a business decision based on a cost/benefit analysis.
If an employer decides to do this type of check, the employment application must provide notice that a criminal record check will be conducted. If an applicant is denied a position in whole or in part because of a criminal conviction (and only a criminal conviction that is job-related), the applicant must be notified in writing. If a criminal record report is obtained from a consumer reporting agency, employers will be subject to additional requirements under the Fair Credit Reporting Act.
Substance Abuse Testing
It has been estimated that approximately 20% of workplace violence is committed by individuals who have substance abuse problems. Given the prevalence of substance abuse in general and the specific link to violence, pre-employment drug testing can be an effective mechanism for "weeding out" potentially violent employees.
If drug testing is conducted, employers should remember to use an independent SAMHSA drug testing lab, perform these tests consistently, either on all employees, or those employees with a particular job description, ensure the validity of the tests by securing the chain of custody, request a second test to confirm the results and use an independent medical review officer to review the results of all of the tests.
Reference Checks
Reference checks are a simple exercise for obtaining insight into an applicant's prior work experiences, ability to work with supervisors and handle work-related stress. Although employers may feel reference checks only provide neutral information, the failure to conduct this simple exercise may subject employers to a negligent hire claim. Therefore, even if useful information is not obtained through a reference check, a record of such attempts should be documented.
Interview Techniques
The interview process itself may also provide employers with valuable insight with respect to an applicant's demeanor and ability to handle particular work situations.
It is permissible to ask an applicant if the applicant has a prior criminal conviction record. However, if the answer is yes, employers must be careful to consider this conviction for its "job-relatedness" if it will become the basis for not hiring the applicant. Employers should also inquire as to the applicant's expectations and experiences in prior jobs, the terms under which the individual left a prior job and how the applicant perceives supervisors in general. These questions may suggest whether an applicant has difficulty with authority, job stress or job criticism. Admittedly, it may be difficult to determine an individual's propensity for violence from an initial interview. However, even if employers do not obtain information relating to violence, employers may learn other valuable information about the applicant.
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Ms. Quinn, a Senior Human Resources Professional, is a member of the Firm's Labor and Employment Department. She has twenty years of experience in the design and implementation of practical, constructive Human Resources strategies, systems and processes that support organizational objectives and enhance employee productivity and satisfaction.
Disclaimer
The ideas presented in these materials are general in nature and not intended to be contstrued as legal advice and cannot be relied on by any person or entity as legal advice pertaining to any specific situation.
