Positive Employee Relations J. Bruce Cross Cross, Gunter, Witherspoon & Galchus, P.C. 500 President Clinton Avenue, Suite 200 Little Rock, Arkansas 72201 firstname.lastname@example.org 501.371.9999 www.cgwg.com
Top Mistakes Made by Employers • SELECTION PROCESS • IMMIGRATION ISSUES • NOT KNOWING THE LAWS TO WHICH YOU ARE SUBJECT • PROTECTING AGAINST RETALIATION CLAIMS • HARASSMENT PREVENTION • DISCIPLINE, TERMINATION, & DOCUMENTATION
THE LEGAL ENVIRONMENT • Legal protection against discrimination based on race, color, sex, age, national origin and religion have to be considered in the selection phase. • Also, the Americans with Disabilities Act prohibits inquiries into disabilities or perceived disabilities.
TOOLS FOR CREATING THE PROPER SELECTION PROCEDURES • Job Applications • Interviews • Reference Checks
JOB APPLICATIONS: GETTING THE DATA YOU NEED
ONLINE BETTER AS GIVES ADDITIONAL MEANS TO LEGALLY ELIMINATE CANDIDATES THROUGH USE OF “BASIC QUALIFICATIONS”
EXAMPLES OF “BASIC QUALIFICATIONS”: • Engineering Degree • 3 years of work experience as an Electrical Engineer
Special Rules for Internet Applicants The Internet Applicant Rule: • Must ask all “Internet applicants” who meet the “basic qualifications” for a job to identify their race, ethnicity, and gender. • Must maintain all “expressions of interest” made through the Internet or related electronic data technologies
Special Rules for Internet Applicants Definition of “Internet Applicant:” • Expresses an interest through Internet or related technology • Considered for employment in particular position • Indicates that he or she has “basic qualifications” • Does not remove himself or herself from further consideration
Special Rules for Internet Applicants Internet related technologies include: • Email • Resume databases • Job banks • Electronic scanning technology • Applicant tracking systems • Applicant screeners
Proper Procedures • Decide minimum qualifications (plus basic qualifications if using an online system) • Outside Applicants? • Post any vacancy • Do not accept internal applications from employees who do not meet the “basic qualifications” if using online system • Review personnel files of internal applicants
Proper Procedures • Select most qualified applicant • Identify race and sex of the qualified pool of applicants • Advertise openings in media that is available to minorities and women • Do not fill a job vacancy until the application period is closed
Tools for Creating the Proper Hiring Procedure The Interview
The Interview Should Focus Upon: • Job Responsibilities • Environmental Factors • Personal Characteristics • Physical Requirements
USE THE JOB DESCRIPTION TO ASSIST YOU IN FOCUSING ON THE ABOVE ELEMENTS!
QUESTIONS TO AVOID • Race, national origin, religion, or age • Marital and family status ‑ including child care problems • Contraceptive practices • Plans to have children • Height or weight • Disabilities
QUESTIONS TO AVOID • Friends or relatives working for your company • Arrest records • The applicant’s credit rating or other financial data • Home ownership
THE INTERVIEW You need to control the interview: • Allow applicant to talk but be prepared to cut them off if rambling. Time is valuable. • Since candidates are pre-screened by Human Resources, need not probe deeply into extraneous areas.
THE INTERVIEW A Conversation with a Purpose • Job Responsibilities • Environmental Factors • Personal Characteristics • Physical Requirements
TALKING TOO MUCH • The interviewer should only talk about 25% of the time. • Your primary goal is to get to know the applicant and determine if the individual has the skills to do the job. Remember: You should listen more than talk!
THE “HALO EFFECT” • This is the tendency to see applicants as all good or all bad based on an outstanding trait. • For example, when an articulate applicant is well liked because of his/her communication skills, we often assume that his/her unrelated skills are equally strong.
FIRST IMPRESSIONS • Interviewers frequently base final decisions on superficial first impressions rather than a thorough analysis of the applicant’s ability to do the job.
PERSONAL BIAS • Be aware of your biases and focus on specific past performance and the qualifications for the job as the basis for your selection decision.
“SIMILAR TO ME” Interviewers have a tendency to be partial to applicants who are similar to themselves. REMEMBER: You are interviewing for someone to work for you. You are not interviewing for someone to be your friend or to “hang out with!”
TELEGRAPHING • The interviewer communicates early in the interview, either verbally or non-verbally, what he/she wants in a new employee. • The perceptive applicant simply repeats this back to the interviewer and appears to be a perfect fit.
ASKING “WHAT IF” QUESTIONS • Hypothetical questions lead to theoretical answers. Applicants good on theory are not necessarily good on follow-through. • Theoretical questions: use words like: “would do,” “going to,” etc. • Behavioral questions: use words like, “did,” “have done,” “currently doing,” etc.
ASKING INAPPROPRIATE QUESTIONS Questions relating to an applicant’s race, religion, sex, national origin, disability or veteran status, or age are inappropriate unless the employer can prove that the information is job-related.
CONTRAST EFFECTS • If an interviewer talks with three poor applicants in a row, a mediocre applicant following these three may get undeservedly high ratings. • When evaluating applicants, refer back to the job requirements as your standard, not just other applicants.
REMEMBER : Your goal in the interview: Determining who is the best candidate to perform the essential functions of the job. Thus, which candidate has the necessary/best skills and knowledge to do that job.
TOOLS FOR CREATING THE PROPER SELECTION PROCEDURE SCREENING REFERENCES
Arkansas Reference Act A.C.A. § 11-3-204 • Provides current and former employers with protection for providing job information • Allows a current or former employer to disclose certain information about the employee provided that it obtains consent from the employee in writing.
Arkansas Reference Act • Allows a current or former employer to disclose the following information: • Date and duration of employment • Current pay rate and wage history • Job description and duties • Last written performance evaluation • Attendance information
Arkansas Reference Act • Results of drug or alcohol tests administered within one year • Threats of violence or harassing acts • Whether employee was voluntarily or involuntarily separated from employment, and the reasons for separation
Arkansas Reference Act • Whether the employee is eligible for rehire
Proper Procedures • Review all applications, interview notes, and reference checks • Identify applicants who do not meet the “basic” and minimum qualifications and do not consider further
Immigration Issues • Independent Contractors • Legislation • I-9s • Social Security No Match Letter
General Employment Laws • Title VII • 42 U.S.C. § 1981 • Arkansas Civil Rights Act • Age Discrimination in Employment Act • Equal Pay Act • Americans with Disabilities Act (ADA) • Family and Medical Leave Act (FMLA) • National Labor Relations Act • Uniformed Service Employment and Reemployment Act (USERRA)
Title VII • Title VII prohibits discrimination on the basis of race, color, religion, sex, pregnancy or national origin • Title VII applies to all employers who are engaged in interstate commerce and have 15 or more employees
Title VII • Provides for “make whole” remedies • Remedies • Back Pay • Front Pay • Attorney’s Fees • Compensatory and Punitive Damages • Injunctive Relief • Injunctions may range from order of reinstatement to general order not to discriminate
42 U.S.C. §1981 • Coverage: • All private employers regardless of the number of employees • Applies to all aspects of employment • Protection: • Racial discrimination • Does not apply to sexual or religious discrimination • Does not apply to national origin discrimination, but it may apply to questions of alienage
42 U.S.C. §1981 • Remedies • Back Pay • Front Pay • Attorney’s Fees • Compensatory & Punitive Damages • Injunctive Relief
Arkansas Civil Rights Act • Coverage • Companies with fewer employees than Title VII (9) • Protection • Prohibits discrimination on the basis of race, religion, ancestry, or national origin, gender, or the presence of any sensory, mental or physical disability • Supervisor individual liability?
Arkansas Civil Rights Act • Remedies • Affirmative Relief • Back pay • Interest • Costs • Attorney Fees • Compensatory and punitive damages
Some Differences Between Arkansas CRA and Title VII • Go directly into Court • No requirement to exhaust administrative remedies • May allow one year to file suit under State CRA vs. 90 days under Title VII • Greater damage potential under Title VII • Federal – 15 employee minimum; State CRA allows much lower employee minimum