Hiring Legal Implications

Hiring Legal Implications May 14, 2014

Hiring Legal Implications By: Robert Butler WASB Associate Executive Director Staff Counsel bbutler@wasb.org 1-877-705-4422 (phone) 1-608-512-1703 (direct phone) 1-608-257-8386 (fax)

I. Introduction General Processes Job Descriptions Posting of Vacancy Requirements Applications Selection of Applicants for Interviews Interviews and Testing

I. Introduction Reference, Criminal Background and Consumer Reporting Checks Final Candidates Recommendation for Conditional Offer of Employment Pre-employment Drug Screening Nepotism Policies and Code of Ethics for Public Officials Making the Hire Assignment Changes

II. Hiring – General Process The process is based on the following guidelines: Essential Functions: “Essential functions” means the fundamental job duties of the employment position and does not include the marginal functions of the position.

II. Hiring – General Process The process is based on the following guidelines: Interview Questions: The district’s interview questions are structured to maximize the district’s ability to determine whether the candidate can perform the essential functions of the job. Recommendations: Those charged with recommending candidates for hire will base their recommendations for selection primarily on an applicant’s ability to perform the essential functions of the job.

II. Hiring – General Process The process is based on the following guidelines: Objective Data and Observations: The district’s interests are best served when interviewers base their recommendations upon objective data and observations. Adherence to the Process: The district consistently follows the outlined process for all candidates barring any extenuating circumstances.

II. Hiring – General Process Timelines of the Process: The district completes its selection process in a thorough and timely manner. Staff Member Participation: The district includes staff members that will have the most interaction with the new employee during the hiring process whenever possible.

II. Hiring – General Process Training of Interview Team: The district trains all participants on the hiring and interview process prior to commencing candidate interviews.

II. Hiring – General Process Preparation: Those selected to be on the interview/selection team will show up on time and prepared for each interview session and will remain committed to the process throughout its duration.

II. Hiring – General Process Confidentiality Statement/Agreement: Those selected to be on the interview committee agree to sign an agreement that they will not disclose information from the process, unless required by law.

II. Hiring – State Requirements PI 8.01(2)(1)(q), Wis. Administrative Code Each school board shall: (1) Establish specific criteria and a systematic procedure to measure the performance of licensed school personnel. (2) Base written evaluation on board-adopted position description and observation of individual’s performance as part of evaluation data. (3) Ensure evaluations are performed by persons who have the training, knowledge and skills necessary to evaluate school personnel. Board is responsible for evaluating the district administrator.

II. Hiring – Position Description Position Descriptions serve multiple purposes and should include, at a minimum: Qualifications for the position, and Essential functions of the job [for evaluation purposes and applicable laws, e.g. Americans with Disabilities Act, WFEA.]

II. EEOC – Essential Functions The district’s interview questions and job descriptions are structured to maximize the district’s ability to determine whether the candidate can perform the essential functions of the job. “Essential functions” means the fundamentaljob duties of the employment position and does not include the marginal functions of the position. Those charged with recommending candidates for hire will base their recommendations for selection primarily on an applicant’s ability to perform the essential functions of the job.

II. Essential Functions –EEOC The EEOC has offered the following advice on defining Essential Functions: Review the purpose of the position and the importance of the actual job functions in achieving the purpose. In evaluating the importance of a job function, school officials should consider: The frequency at which the function is performed; The amount of time spent on the function; Whether the function requires specialized skill or training inherent to the position;

II. Essential Functions –EEOC (Continued) Review the purpose of the position and the importance of the actual job functions in achieving the purpose. In evaluating the importance of a job function, school officials should consider: The number of employees qualified and available to perform the function; and, The consequences of not performing the function.

II. Hiring – Essential Functions –EEOC (cont.) EEOC advice on defining Essential Functions: Focus on the purpose of the job function and the result to be accomplished rather than the manner in which the function is to be performed. In other words, if the position exists to perform the particular function, then the function is essential.

II. Hiring – Essential Functions –EEOC (cont.) EEOC has offered the following advice on defining Essential Functions: Each job description should also provide general guidance for the performance of duties not specifically outlined in the job description. A statement such as “He or she shall perform such other duties as assigned” may provide this general guidance. Finally, the job description should explicitly state the goal or purpose of the position and the title of the position or person to whom the employee reports.

II. Hiring – Posting of Vacancy Notices Posting Requirements: Posting date. Application deadline and statement notifying potential applicants that the district will neither accept nor review application materials received after the deadline has passed. Brief description of the district.

II. Hiring – Posting of Vacancy Notices Posting Requirements: Position title. Description of position duties and responsibilities (link to online job description if possible – provide web address to online job description if paper posting).

II. Hiring – Posting of Vacancy Notices Posting Requirements: Required education and/or certifications, qualifications, skills, work experience, etc. Terms of employment Pay and benefit range

II. Hiring – Posting of Vacancy Notices Posting Requirements: Location(s) of the position or work to be performed (subject to the district’s ability to change, i.e. position is district-wide) Application instructions for internal and external applicants including a list of all application materials (e.g., application, resume, letter(s) of reference, official transcripts, etc.) that must be submitted.

II. Hiring – Posting of Vacancy Notices Posting Requirements: Collective Bargaining Agreement (if applicable). Board Policy Employee Handbook Notification to employees on layoff/employees with reemployment options.

II. Hiring – Posting of Vacancy Notices Posting Requirements: Is it a change in assignment or a vacancy? Change in assignment is discussed later in the presentation.

II. Hiring – Employment Discrimination Employment Discrimination: Wisconsin and federal laws make it illegal for employers to discriminate against properly qualified individuals on the following bases: Age Race Creed Color Disability Genetic information See §§111.321, ADA, Title VII, ADEA, GINA et al

II. Hiring – Employment Discrimination Employment Discrimination (Continued): Wisconsin and federal laws make it illegal for employers to discriminate against properly qualified individuals on the following bases: Marital status Sex Pregnancy National origin Ancestry Sexual orientation See §§111.321, Pregnancy Non-Discrimination, Title VII

II. Hiring – Employment Discrimination Employment Discrimination (Continued): Wisconsin and federal laws make it illegal for employers to discriminate against properly qualified individuals on the following bases: Arrest record Conviction record

II. Hiring – Employment Discrimination Arrest and Conviction (continued): Although 2011 Wisconsin Act 83 modified Wisconsin’s Fair Employment Act such that it is not employment discrimination for educational agencies, including school districts, to refuse to employ or to terminate from employment an individual who has been convicted of a felony and who has not been pardoned for that felony, the WASB cautions against a zero-tolerance approach toward employing (or not employing) unpardoned felons. See, e.g., http://www.eeoc.gov/eeoc/foia/letters/2010/titlevii_conviction_and_safe.html. and See, e.g., U.S. Equal Emp. Opportunity Comm’n, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, available at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. See §§111.321, Wisconsin Statutes

II. Hiring – Employment Discrimination Arrest and Conviction (continued): The circumstances of any particular situation may lead administrators to conclude that hiring someone who has a felony conviction on his or her record is in the best interest of the district. Furthermore, to the extent that a zero-tolerance policy would have a disparate impact on members of a protected class of applicants or employees, enforcement of the zero-tolerance policy could violate Title VII of the Civil Rights Act of 1964. See, e.g., http://www.eeoc.gov/eeoc/foia/letters/2010/titlevii_conviction_and_safe.html. and See, e.g., U.S. Equal Emp. Opportunity Comm’n, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, available at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. See §§111.321, Wisconsin Statutes

II. Hiring – Employment Discrimination Employment Discrimination (Continued): Wisconsin and federal laws make it illegal for employers to discriminate against properly qualified individuals on the following bases: Military service Use or nonuse of lawful products off the employer’s premises during nonworking hours An individual’s refusal to attend a meeting or to participate in any communication about religious matters. Union membership or activities Declaration of bankruptcy See §§111.321, 111.70(3)(a)3,11 U.S.C. §525(a), USERRA

II. Hiring – Employment Discrimination Employment Discrimination (Continued): Wisconsin Law regarding visually impaired, deaf, or other physical handicap: 118.195 Discrimination against handicapped teachers prohibited. (1) No person otherwise qualified may be denied a certificate or license from the state superintendent under s. 118.19 (1) because the person is totally or partially blind, deaf or physically handicapped nor may any school district refuse to employ a teacher on such grounds, if such handicapped teacher is able to carry out the duties of the position which the person seeks. (2) Any school board may request the state superintendent for advice and assistance in interpreting this section.

II. Hiring – Applications and Application Forms Do not directly or indirectly seek any information relating to the characteristics protected by state or federal law.

II. Hiring – Applications and Application Forms Disclaimer: Should require the applicant to : declare that the information he or she discloses in the application is accurate. explain that any misrepresentation or omission of material facts may cause the district to disqualify the applicant from consideration or terminate the applicant’s employment if the misrepresentations are discovered after the applicant has begun working for the district.

II. Hiring – Applications and Application Forms Not a Contract or Offer of Employment: Applications should also declare that: The district is an equal opportunity employer that will not discriminate against an applicant on any prohibited bases. The application itself is neither an offer of employment nor an employment contract.

II. Hiring – Applications and Application Forms Record Retention: Application materials received by the application deadline must be retained: in accordance with the district’s records retention policy or the records retention law if the board has not adopted a records retention policy approved by the state Public Records Board.

II. Hiring – Applications and Application Forms Record Retention: State: DPI Record Retention Schedule for School Districts recommends: 3 years for applicants not hired 6 years after date of resignation, retirement or termination Record Definition: For purposes of Wisconsin’s public records law, “‘record’ does not include drafts, notes, preliminary computations and like materials prepared for the originator’s personal use. . . .” Wis. Stat. §19.32(2). Source: http://publicrecordsboard.wi.gov/docview.asp?docid=15892&locid=165

II. Hiring – Interview Process & Accepted Applications Application Materials Retention - Federal: Accepted application materials: Should be retained for no less than one year from the date in which (1) the record was created or (2) the district offers the position to an applicant, whichever is later. Interviewer’s Notes: An interviewer’s personal notes from the interviews need not be collected or retained, provided the notes were prepared solely for the interviewer’s personal use during the interviewing/hiring process. If, however, the notes were made on an official district form or were created for the use of the committee as a whole, they must be retained pursuant to the state public records law. 29 C.F.R. §§ 1602.14, 1627.3(b)(1)(i).

II. Hiring – Applications and Application Forms Unsolicited Applications: Provided the district has adopted a policy of refusing to accept unsolicited applications and applications received after a posted deadline, and the policy has been consistently enforced, the district need not retain unsolicited applications or applications received after a posted application deadline has passed.

II. Hiring – Selection of Applicants for Interviews Who to Interview: Administrator discretion on who to interview restrained by, or defined by: Board Policy Employee Handbook Administrative rules Collective Bargaining Agreement (if applicable

II. Hiring – Selection of Applicants for Interviews Screening of Applications: Whenever possible, screen all applicants in conjunction with the position description and posting requirements. Scheduling of Interviews: The administrator and/or interview committee should then schedule interviews with qualified applicants as soon as possible after the screening so the district can fill the position as quickly as possible.

II. Hiring – Interview Process Written Questions: Establish specific written interview questions that will help determine whether the candidate can adequately perform the essential functions of the position. Interview questions may be solicited from team members or other administrators.

II. Hiring – Interview Process Written Questions: To the extent possible, interview questions should elicit responses that describe the candidate’s actual experiences as opposed to his or her hypothetical responses to a given situation or circumstance. Once questions have been established, the questions should be used for each candidate for the same vacancy.

II. Hiring – Interview Process Honesty Testing: Under no circumstances, may the supervising administrator or hiring committee require any applicant to submit to honesty testing, such as a polygraph, lie detector or similar device. The use of honesty testing during the hiring process is prohibited under section 111.37(2) of the Wisconsin Statutes.

II. Hiring – Social Media Social Media Inquiries: 2013 Wisconsin Act 208, provides that no employer, including a school district, may do any of the following: Request or require an employee or applicant for employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account. Discharge or otherwise discriminate against an employee for exercising the right to refuse to disclose access information for, grant access to, or allow observation of the employee’s personal Internet account, opposing an employer practice that violates this new law, filing a complaint or attempting to enforce rights granted to employees under this law, or testifying or assisting in any action or proceeding to enforce such rights.

II. Hiring – Social Media Social Media Inquiries: 2013 Wisconsin Act 208, provides that no employer, including a school district, may do any of the following: Refuse to hire an applicant for employment because the applicant refused to disclose access information for, grant access to, or allow observation of the applicant’s personal Internet account.

II. Hiring – Social Media Social Media Inquiries: the Act also provides for a partial list of the express exceptions that apply to the above listed restrictions on employers, this new law does not prohibit an employer from doing any of the following: 1.Viewing, accessing, or using information about an employee or applicant for employment that can be obtained without access information or that is available in the public domain. 2.Requesting or requiring an employee to disclose the employee’s personal electronic mail address. (Note: Although this exception within this new law does not reference applicants for employment, it is unclear if this new law actually intends to prohibit an employer from requesting or requiring an applicant to provide a personal electronic mail address. https://docs.legis.wisconsin.gov/2013/related/acts/208

II.Hiring – Medical Examinations & Inquiries Pre-employment Medical Examinations: An Employer may make pre-employment inquiries into the ability of an applicant to perform job-related functions.

II. Hiring - Medical Examinations & Inquiries Employment Entrance Examination: An Employer may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if (A) all entering employees are subjected to such an examination regardless of disability;

II. Hiring - Medical Examinations & Inquiries Employment Entrance Examination: An Employer may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if (B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that:

II. Hiring - Medical Examinations & Inquiries (B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that (i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; (ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and (iii) government officials investigating compliance with this chapter shall be provided relevant information on request; and (C) the results of such examination are used only in accordance with the limits set forth in statutes.

II. Employer Defenses to a Charge of Discrimination – Pre-employment testing Defense: Test will be upheld if alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under the ADA and other applicable law.

II.Hiring – Physical Testing & Inquiries Physical Testing: Job-Related and Business Necessity Ability to Perform with or without an accommodation. http://www.eeoc.gov/policy/docs/guidance-inquiries.html

II.Hiring – Physical Testing & Inquiries Physical Testing: Individual doesn’t pose a direct threat to the health or safety of other individuals in the workplace. Special Restrictions on Uncorrected vision, infectious or communicable diseases, illegal use of drugs & alcohol http://www.eeoc.gov/policy/docs/guidance-inquiries.html

II.Hiring – Physical Testing & Inquiries Physical Testing: Accommodation: An employer may require an employee/applicant to provide documentation that is sufficient to substantiate that s/he has an Americans with Disability Act disability and needs the reasonable accommodation requested, but cannot ask for unrelated documentation. http://www.eeoc.gov/policy/docs/guidance-inquiries.html

II.Hiring –Physical Testing & Inquiries Physical Testing: This means that, in most circumstances, an employer cannot ask for an employee's complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. http://www.eeoc.gov/policy/docs/guidance-inquiries.html

II. Hiring –Physical Testing & Inquiries Physical Testing: Documentation is sufficient if it: (1) describes the nature, severity, and duration of the employee's impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee's ability to perform the activity or activities; and, (2) substantiates why the requested reasonable accommodation is needed. http://www.eeoc.gov/policy/docs/guidance-inquiries.html

II. Hiring –Physical Testing & Inquiries Physical Testing: Medical waiver: Employers that require physical agility or physical fitness tests may ask an employee to have a physician certify whether s/he can safely perform the test. In this situation, however, the employer is entitled to obtain only a note simply stating that the employee can safely perform the test or, alternatively, an explanation of the reason(s) why the employee cannot perform the test. http://www.eeoc.gov/policy/docs/guidance-inquiries.html

II. Hiring –Physical Testing & Inquiries Physical Testing: Medical waiver: An employer may not obtain the employee's complete medical records or information about any conditions that do not affect the employee's ability to perform the physical agility or physical fitness test safely. http://www.eeoc.gov/policy/docs/guidance-inquiries.html

II. Hiring –Other Forms of Testing & Inquiries Cognitive tests assess reasoning, memory, perceptual speed and accuracy, and skills in arithmetic and reading comprehension, as well as knowledge of a particular function or job; Personality tests and integrity tests assess the degree to which a person has certain traits or dispositions (e.g., dependability, cooperativeness, safety) or aim to predict the likelihood that a person will engage in certain conduct (e.g., theft, absenteeism); English proficiency tests determine English fluency. http://www.eeoc.gov/policy/docs/factemployment_procedures.html

II. Hiring –Other Forms of Testing & Inquiries Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability. Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. http://www.eeoc.gov/policy/docs/factemployment_procedures.html

II. Hiring –Other Forms of Testing & Inquiries The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under the EEOC’s Uniform Guidelines on Employee Selection Procedures. http://www.eeoc.gov/policy/docs/factemployment_procedures.html http://www.uniformguidelines.com/uniformguidelines.html

II. Hiring –Other Forms of Testing & Inquiries If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group. http://www.eeoc.gov/policy/docs/factemployment_procedures.html http://www.uniformguidelines.com/uniformguidelines.html

II. Hiring –Other Forms of Testing & Inquiries To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly. http://www.eeoc.gov/policy/docs/factemployment_procedures.html http://www.uniformguidelines.com/uniformguidelines.html

II. Hiring –Other Forms of Testing & Inquiries Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored. http://www.eeoc.gov/policy/docs/factemployment_procedures.html http://www.uniformguidelines.com/uniformguidelines.html

II. Hiring –Other Forms of Testing & Inquiries For further background on experiences and challenges encountered by employers, employees, and job seekers in testing, see the testimony from the Commission’s meeting on testing, located on the EEOC’s public web site at: http://eeoc.gov/eeoc/meetings/archive/5-16-07/index.html. http://www.eeoc.gov/policy/docs/factemployment_procedures.html http://www.uniformguidelines.com/uniformguidelines.html

II. Hiring – Interview Process - Questions Interview questions must avoid seeking information relating to the characteristics protected by state and federal law, such as sex, race and age. To avoid claims of unlawful discrimination: The district should not ask for an applicant’s age or birth date; The district should not ask for the name of the applicant’s spouse, spouse’s place of work or maiden name, or for any other information that would require an applicant to disclose his or her marital status.

II. Hiring – Interview Process - Questions Interview questions must avoid seeking information relating to the characteristics protected by state and federal law, such as sex, race and age. To avoid claims of unlawful discrimination: The district should not ask about an applicant’s medical or accident history, physical abilities or limitations, history of worker’s compensation claims or history of sick or family and medical leave usage. The district should not ask an applicant about his or her country of citizenship. The district should not ask whether the applicant is pregnant, has children or intends to have children.

II. Hiring – Interview Process - Questions Interview Questions Must Avoid: Arrest and Conviction: Although the district may inquire as to whether an applicant is subject to any pending criminal charges, the district should not inquire as to an applicant’s prior arrest records.

II. Hiring – Interview Process - Questions Interview Questions must avoid: Arrest and Conviction: The district is prohibited from summarily rejecting an applicant on the basis of pending criminal charges if the pending charges do not substantially relate to the circumstances of the job.

II. Hiring - Arrest and conviction record discrimination Termination for conviction for possession of THC found to be substantially related to the circumstances of the job of assistant debate coach in a high school. Standard for determining if a substantial relationship exists: the offender’s ability to repeat his or her criminal behavior at the work place; whether the work setting allows the offender a greater than usual opportunity to engage in the behavior pattern shown by the conviction; and, whether “the individual’s character traits and tendencies revealed by commission of the crime are likely to reappear in the context of the employee’s job.”

II. Hiring - Arrest and conviction record discrimination The potential for the employee to possess or use drugs while at work was not greater in this job than in general and was not a reason to find a substantial relationship. The employee’s “propensity for illegal drug use revealed a character trait and an attitude that made it reasonable to suspect how faithfully he would carry out his responsibility to monitor and enforce the school’s drug-free policies.” “[T]he district ha[d] a legitimate interest in expecting its employees who work with the students to refrain from engaging in illegal conduct, particularly the possession or use of illegal drugs, since the possession, use or sale of illegal drugs by a student of . . . [h]igh [s]chool could result in expulsion of a student from school.” The LIRC upheld the termination of the employee. https://www.wasbmemberservices.org/websites/employment_law_hr_services/File/reviews/vol_45/Manning%20v.%20Cedarburg%20LIRC.pdf

II. Hiring – Interview Process - Questions Interview questions must avoid Use of Lawful Products: The district should not ask an applicant whether he or she needs a “smoke break” or whether he or she would like to join the interview team for drinks at a local establishment after completing the “formalities” of the interview.

II. Hiring – Interview Process - Questions Interview questions must avoid: Personal Financial History: The district should not inquire as to an applicant’s credit or bankruptcy history.

II. Hiring – Interview Process - Questions Interview questions must avoid: Religion: The district should try to avoid inquiring as to whether an applicant is available to work on Saturday or Sunday because that question could require an applicant to disclose his or her membership in a certain religious group, National Guard or military reserves. If work on Saturday or Sunday is required, the district should indicate that it will make a reasonable effort to accommodate the needs of its employees.

II. Hiring – Interview Process - Questions Interview questions to ask: Previous work history (including why he or she left or is considering leaving his or her current or former employer), Education, training and skill level (but only to the extent of education, training or skill level required of the position), and

II. Hiring – Interview Process - Questions Interview questions to ask: Motivation to work for the district and career goals (including whether the applicant is available for/willing to work overtime).

II. Hiring – Criminal Background Checks - General School districts are not required by law to perform criminal background checks on prospective or current school district employees. Please see https://docs.legis.wisconsin.gov/document/statutes/50.065 for caregiver law coverage. Department of Public Instruction (DPI) does perform criminal background checks on individuals who seek to be licensed as teachers in the State of Wisconsin, at the time the individual first seeks licensure.

II. Hiring – Criminal Background Checks - General Authorization for the Criminal Background Check from the Applicant May also review traffic records for applicants who are required to drive district vehicles or transport pupils. See prior discussion on employment discrimination protections and nexus between criminal record and employment decisions.

II. Hiring – Criminal Background Checks - General For more information, visit the following web address from DPI on the record checking process: http://www.doj.state.wi.us/sites/all/themes/wi-doj-ag/dles/cib-forms/record-check-unit/vca-explanation.pdf And the following WASB Legal Comment: https://www.wasbmemberservices.org/campaigns/CMPART/ACC1/CMPART769/File/WASB%20Legal%20Comment%20July%202012%20Background%20Checks%20of%20S.D.%20Employees%20&%20Volunteers.pdf

II. Hiring – Credit Reports - General Authorization for the Credit Report Check from the Applicant as authorized under FCRA as defined below. Federal Fair Credit Reporting Act (FCRA). The FCRA is a federal statute that regulates consumer reporting agencies and limits the purposes for obtaining consumer reports.

II. Hiring – Credit Reports - General Federal Fair Credit Reporting Act (FCRA). The FCRA applies to employers when they request a "consumer report" or an "investigative consumer report" in order to evaluate an applicant for employment or an employee for promotion, reassignment or retention. FCRA applies to a much broader spectrum of reports than just "credit reports," including those that contain absolutely no credit-related information.

II. Hiring – Credit Reports - General Federal Fair Credit Reporting Act (FCRA). An employer may obtain a consumer credit report for an "employment purpose." The term "employment purpose" means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment, or retention as an employee.

II. Hiring – Credit Reports - General Federal Fair Credit Reporting Act (FCRA). Securing a consumer credit report from a consumer reporting agency to make a decision regarding hiring would constitute obtaining the report for an "employment purpose."

II. Hiring – Credit Reports - General Federal Fair Credit Reporting Act (FCRA). The term "consumer reporting agency" means any person who, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties. State agencies that provide criminal record information or a driving record to employers are not consumer reporting agencies.

II. Hiring – Credit Reports - General Federal Fair Credit Reporting Act (FCRA) – Consumer Reporting Agency The term "consumer reporting agency" means any person who, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties. State agencies that provide criminal record information or a driving record to employers are not consumer reporting agencies.

II. Hiring – Credit Reports - General Federal Fair Credit Reporting Act (FCRA) - Disclosure: An employer may not request or procure a consumer report concerning any consumer, whether applicant or employee, unless the employer provides the consumer a clear and conspicuous disclosure in writing that a consumer report may be obtained for employment purposes; The disclosure is in a document that consists solely of the disclosure; and the consumer provides written authorization for obtaining the consumer report.

II. Hiring – Credit Reports - General Federal Fair Credit Reporting Act (FCRA) – Summary of Rights Furthermore, if the employer uses information from the report to deny an application for employment, the employer must provide the employee with A Summary of Your Rights Under the Fair Credit Reporting Act and information regarding the company that supplied the report, the nature and scope of the investigation, and the right to dispute the accuracy of the report.

II. Hiring – Reference Checks - General Release: Create a separate document on which an “authorize and release statement” signed by the applicant: (1) allows the district to contact the applicant’s references to verify the truthfulness of the information provided on the application, (2) authorizes the applicant’s references to respond to the district’s questions, and (3) releases and holds harmless the district and those who provide information from any possible defamation claims and resulting liability.

II. Hiring – Reference Checks - General Verification: Reference checks should verify the information a candidate submitted in his or her application materials, supplement any information gaps and address any reservations the administrator may have about the candidate’s ability to perform the job.

II. Hiring – Reference Checks - General Former Employer: If the reference check is with a former employer, the administrator should ask the former employer if it would hire the applicant again if given the opportunity to do so. These references checks should be detailed, completed on the approved form, focus on the applicant’s ability to perform the job and also include a reference check from the candidate’s current or most recent supervisor.

II. Hiring – Reference Checks Wis. Stat.§ 895.487, Provides that an employer who, on the request of an employee or a prospective employer of the employee, provides a reference to that prospective employer is presumed to be acting in good faith. This presumption can only be overcome by clear and convincing evidence that the employer knowingly provided false information in the reference; that the employer made the reference maliciously; or that the employer made the reference in a manner that violates the prohibitions against discrimination under the Wisconsin Fair Employment Act.

II. Hiring – Residency Public Employee Residency Requirements Prohibited: With certain exceptions that are generally not applicable to school districts, the Act provides that no local governmental unit may require, as a condition of employment, that any employee or prospective employee reside within any jurisdictional limit. Residency requirements that are in effect as of July 2, 2013 do not apply and may not be enforced. Wisconsin Statute Section 66.0502.

II. Hiring – Pre-Employment Drug Testing Pre-Employment, Post-Offer Drug Testing: If a district requires pre-employment drug testing, it should do so only after adopting a drug-testing policy that has been reviewed with the district’s legal counsel to ensure that the testing does not: violate the Fourth Amendment’s restriction on unreasonable searches and seizures, an applicant’s right to privacy, the Americans with Disabilities Act, or the Genetic Information Nondiscrimination Act.

II. Hiring – Pre-Employment Drug Testing Pre-Employment, Post-Offer Drug Testing: Moreover, once any such policy has been adopted, the district must ensure that the policy is enforced consistently and only upon those to which it has extended a conditional offer of employment. The District should not require pre-employment drug screening to any applicants it has not actually given a conditional offer of employment. Finally, the district must secure the results of any drug test and not disclose this information to the public or any non-essential board members or administrators.

II. Hiring – Pre-Employment Drug Testing Attorney General Opinion: It is my opinion that a pre-employment drug testing program most likely would be upheld by the courts in situations where public safety and security create a strong governmental interest in the integrity of an employee's character and physical and mental faculties, and where the circumstances of collection are least intrusive.” 76 Op. Att'y Gen. 257, 261 (1987)

II. Hiring – Pre-Employment Drug Testing Attorney General Opinion (cont.): It is my opinion that a pre-employment drug testing program most likely would be upheld by the courts in situations where public safety and security create a strong governmental interest in the integrity of an employee's character and physical and mental faculties, and where the circumstances of collection are least intrusive.” 76 Op. Att'y Gen. 257, 261 (1987)

II. Hiring – Nepotism and Code of Ethics for Public Officials Anti-Nepotism Policies: Common law: the general rule is that a public official may not participate in decisions concerning issues in which he or she has a direct pecuniary interest. Wisconsin Criminal law: Prohibits a public officer or public employee, acting in his or her official capacity, from participating in the making of a contract in which the officer or employee has a private pecuniary interest and from performing discretionary functions pertaining to the contract. Wis. Stats. 19.41

II. Hiring – Nepotism and Code of Ethics for Public Officials Anti-Nepotism Policies: Wisconsin Criminal law: . It is also a crime for a public official or employee, in his or her private capacity, to negotiate, bid for, or enter into a contract with the school district when the public official or employee has a direct or indirect private pecuniary interest in the contract. Wis. Stats. 946.13.

II. Hiring – Nepotism and Code of Ethics for Public Officials Anti-Nepotism Policies: Wisconsin Code of Ethics: Prohibits local public officials from using their public position to obtain financial gain or anything of substantial value for their private benefit or for their immediate family. The personal gain prohibited can be anything of value, which means any money or property, favor, service, payment, advance, forbearance, loan or promise of future employment. Wis. Stats. 19.59

II. Hiring – Nepotism and Code of Ethics for Public Officials Anti-Nepotism Policies: Marital Status Discrimination: State law specifically prohibits discrimination based on the employee's marital status, it provides a specific exception that permits board policies prohibiting an individual from obtaining a position in the school district where the individual would be directly supervised by his or her spouse. Such policies are justified by eliminating employment relationships that may result in conflicts of interest between an employee and a supervisor spouse Wis. Stat. § 111.345.

II. Hiring – Incompatibility of office For Public Officials Incompatibility of Office: Bars a person from holding two offices where: One office is superior to another such that the duties exercised under each might conflict with the other; or Where the nature and duties of two offices are such that public policy considerations bar one person from discharging the duties of both. Ottradovev v. City of Green Bay, 118 Wis. 2d 393, 396; 347 N.W.2d 614 (Ct. App. 1984).

II. Making the Hire and Reporting Making the Hire - Certified Staff: For certified staff members and administrators, the board must approve the candidate’s individual contract by a majority vote of the full membership of the board. For example, if a board has seven members, but only four attend a meeting at which a motion is made to approve a teacher’s contract, the motion will carry only if all four members present vote in its favor. Any such motions and votes should be properly recorded in the board meeting’s minutes. Once a contract is approved, it should be signed and dated by board representatives and the employee, and it should be filed with the district clerk. Wis. Stats. §§ 118.22, 24.

II. Making the Hire and Reporting Reporting: School districts are required to send information to the Wisconsin Department of Workforce Development (DWD) regarding: (See §103.05, Wis. Stats.) New employees: Employers must report all employees who reside or work in the State of Wisconsin to whom the employer anticipates paying earnings. Employees must be reported even if they work only one day and are terminated (prior to the employer fulfilling the new hire reporting requirement).

II. Making the Hire and Reporting Reporting: School districts are required to send information to the Wisconsin Department of Workforce Development (DWD) regarding : See §103.05, Wis. Stats. Re-hires or Re-called employees: Employers must report re-hires, or employees who return to work after being laid off, furloughed, separated, granted a leave without pay, or terminated from employment after 90 days. Employers must also report any employee who remains on the payroll during a break in service or gap in pay, and then returns to work after 90 days. This includes teachers, substitutes, seasonal workers, etc.

II. Making the Hire and Reporting Reporting: School districts are required to send information to the Wisconsin Department of Workforce Development (DWD) regarding : See §103.05, Wis. Stats. Temporary employees: Temporary agencies are responsible for reporting any employee whom they hire to report for an assignment. Employees need to be reported only once; they do not need to be re-reported each time they report to a new client. They do need to be reported as a re-hire if the worker has a break in service or gap in wages.

II. Making the Hire and Reporting Eligibility to Work Verification: The board must make a good faith effort to verify the identity of new hires and their eligibility to work in the United States. 8 U.S.C. § 1324a(b)(1).

II. Making the Re-Hire - Practical Implications Explain law to potential retirees and new hires – refer the retiree to the Department of Employee Trust Funds. Do not verbally or in writing engage in any conversations prior to retirement or during minimum break in service periods with the employee about re-hiring. Provide new hires with rehired annuitant form ET-2319 http://etf.wi.gov/publications/et2319.pdf Ask new hires to fill out a verification form Check ETF database to verify participation Consult ETF’s website and/or call ETF’s employer hotline with questions

II. Making the Re-Hire - Practical Implications Further potential implications arise if the rehire is hired by the same employer : Is the employee receiving a non-elective post-employment 403(b) benefit from the same employer? Is the employee receiving health insurance from the same employer?

II. Making the Hire and Reporting Verification - An employer should take precautions to avoid “over-documentation” which refers to, but is not limited to, the following situations in which the employer: Requests more documents than required by law to complete the Form I-9 process; Rejects valid documents presented by an employee and instead requests specific documents preferred by the employer; or Requests an employee to present work authorization documents more often than required. Source: Benjamin T. Kurten, Form I-9: Verifying Employment Eligibility – Can I Go Too Far?, 85 WI Lawyer, 2012 (http://www.wisbar.org/AM/Template.cfm?Section=Wisconsin_Lawyer&template=/CM/ContentDisplay.cfm&contentid=11190).

II. Making the Hire and Reporting Grooming and Dress Requirements: The board is required by Wisconsin law to advise new employees of any grooming or dress requirements and should ensure that the new employee receives a copy of the position description, staff handbook and any other relevant employment policies and rules. Wis. Stat. § 103.14.

III. Change in Assignment – Individual Contracts Under Wis. Stat. Sec. 118.21 (1) The school board shall contract in writing with qualified teachers. The contract, with a copy of the teacher’s authority to teach attached, shall be filed with the school district clerk. Such contract, in addition to fixing the teacher’s wage, may provide for compensating the teacher for necessary travel expense. A teaching contract with any person not legally authorized to teach the named subject or at the named school shall be void. All teaching contracts shall terminate if, and when, the authority to teach terminates.

III. Change in Assignment – Individual Contracts Under Wis. Stat. Sec. 118.21 (2) Any person who contacts to teach in any public school shall file in the office of the school district administrator, within 10 days after entering into such contract, a statement showing the date of expiration and the grade and character of certificate or license held. In any school district not having a school district administrator, the statement shall be filed with the school district clerk. No order or warrant may be issued by the school district clerk in payment of the salary of any teacher, unless the teacher has complied with this subsection.

III. Change in Assignment – Individual Contracts Under Wis. Stat. Sec. 118.21 (3) School boards may provide in the contracts of teachers of agricultural and homemaking courses for payment out of school district funds for services performed outside the school district and connected with the performance of their regular teaching duties, and for travel expenses connected with such services. (4) School boards may give to any teacher, without deduction from the teacher’s wages, the whole or part of any time spent by the teacher in attending a teachers’ educational convention, upon the teacher’s filing with the school district clerk a certificate of attendance at the convention, signed by the president or secretary of the association conduction the convention.

III. Change in Assignment – Individual Contracts Under Wis. Stat. Sec. 118.22 (2) . . . No teacher may be employed or dismissed except by a majority vote of the full membership of the board. Nothing in this section prevents the modification or termination of a contract by mutual agreement of the teacher and the board. No such board may enter into a contract of employment with a teacher for any period of time as to which the teacher is then under of contract of employment with another board.

III. Basic Elements of a Contract and Impact on Assignment Offer Acceptance Consideration Meeting of the minds A court’s role is to protect each party by ensuring that promises will be performed, but for a contract to be enforceable, its terms must be so definite that the promises and performances to be rendered by each party are reasonably certain.

III. Assignment & Responsibilities Should you include the teacher’s or administrator’s specific assignment? Kabes v. Sch. Dist. of River Falls, 2004 WI App 55 Individual contracts specifically named Kabes as the high school principal and Buchholz as its high school assistant principal. During the spring semester, the District reassigned Kabes to one of its elementary schools and Buchholz to one of its middle schools. The District did not change their duties or compensation, but the administrators’ filed suit and claimed that the district’s reassignments breached their individual contracts.

III. Assignment & Responsibilities Should you include the teacher’s or administrator’s specific assignment? Kabes v. Sch. Dist. of River Falls, 2004 WI App 55 The District argued that it retained its right to assign and transfer its administrators, but the court held that the district abdicated those rights when in specifically contracted the administrators to perform their duties at the high school. Consequently, the court held that the district breached the contracts when it unilaterally transferred the administrators to different schools.

III. Assignment & Responsibilities Should you include the teacher’s or administrator’s specific assignment? Alternatives: Make sure the contract states that the teachers are District employees and that their assignments are not location-specific. Include a provision that the teacher’s assignment is subject to change as educational needs dictate. If the teacher’s contract includes these provisions, the district will be able to transfer or reassign the teacher provided the reassignment is not disciplinary or discriminatory.

III. Assignment & Responsibilities Wis. Stat. Sec. 118.20 – Teacher discrimination prohibited (1) no discrimination because of sex, except where sex is a bona fide occupational qualification . . . race, nationality or political or religious affiliation may be practiced in the employment of teachers or administrative personnel in public schools or in their assignment or reassignment. Such complaints will be handled through formal procedures by the state superintendent of instruction.

III. Assignment & Responsibilities Teacher responsibilities and potential assignments: Incorporate those duties and responsibilities specified in the job description, as well as, any others contained in board policies or an employee handbook. Notify the teacher that the district expects him or her to take part in extracurricular activities, pupil supervision, group meetings, curriculum development and fulfill any other duties within the scope of his or her professional competence as assigned by the administration.

III. Modification of Existing Contracts [to Address Assignment Changes and Other Changes] The timing of these modifications/negotiations will be dictated by the nonrenewal statute and timeline: 118.22(2): On or before May 15 of the school year during which a teacher holds a contract, the board by which the teacher is employed or an employee at the direction of the board shall give the teacher written notice of renewal or refusal to renew the teacher’s contract for the ensuing school year. If no such notice is given on or before May 15, the contract then in force shall continue for the ensuing school year. A teacher who receives a notice of renewal of contract for the ensuing school year, or a teacher who does not receive a notice of renewal or refusal to renew the teacher’s contract for the ensuing school year on or before May 15 shall accept or reject in writing such contract not later than the following June15.

III. Modification of Existing Contracts [to Address Assignment Changes and Other Changes] The timing of these modifications/negotiations will be dictated by the nonrenewal statute and timeline: 118.22(3) At least 15 days prior to giving written notice of refusal to renew a teacher's contract for the ensuing school year, the employing board shall inform the teacher by preliminary notice in writing that the board is considering nonrenewal of the teacher's contract and that, if the teacher files a request there for with the board within 5 days after receiving the preliminary notice, the teacher has the right to a private conference with the board prior to being given written notice of refusal to renew the teacher's contract.

III. Modification of Existing Contracts [to Address Assignment Changes and Other Changes] The timing of these modifications/negotiations will be dictated by the nonrenewal statute and timeline: 118.22(2) (continued): . . . Nothing in this section prevents the modification or termination of a contract by mutual agreement of the teacher and the board. Boards should begin planning for contract prospectively to give adequate advanced notice to teachers and to allow time for subsequent negotiations and/or modifications. Any changes will need to be agreed upon before the board needs to issue notice of nonrenewal or intent to renew.

III. Modification of Existing Contracts [to Address Assignment Changes and Other Changes] The timing of these modifications/negotiations will be dictated by the nonrenewal statute and timeline: Boards must leave themselves time to determine whether they are willing to nonrenew teachers who are unwilling to accept proposed modifications to existing agreements. With the expiration of collective bargaining agreements, boards are no longer required to give just cause protection for the nonrenewal of a teacher’s contract and teachers have no property interests in the renewal of their contracts (unless the individual contract grants just cause for nonrenewal). See Beischel v. Stone Bank Sch. Dist., 362 F.3d 430 (7th Cir. 2004).

Hiring Questions?

Presenter Biography Bob Butler has been a WASB staff counsel since 1990. He is also, along with attorney Barry Forbes, the Association’s co-associate executive director. Bob directly represents more than 40 school districts in Wisconsin on employment, human resources and school law matters. Bob also provides membership services, including general legal information, to all school districts that are members of WASB. He graduated from the University of Wisconsin Law School and received his undergraduate degree in industrial and labor relations from Cornell University. Bob can be contacted at: bbutler@wasb.org 1-877-705-4422 (phone) 1-608-512-1703 (direct phone) 1-608-257-8386 (fax)

Hiring Legal Implications