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Cerritos Fresno Irvine Riverside Pleasanton Sacramento San Diego HIRING PRACTICES University of California, Riverside January 16, 2013 10:00 a.m. - Noon.

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Presentation on theme: "Cerritos Fresno Irvine Riverside Pleasanton Sacramento San Diego HIRING PRACTICES University of California, Riverside January 16, 2013 10:00 a.m. - Noon."— Presentation transcript:

1 Cerritos Fresno Irvine Riverside Pleasanton Sacramento San Diego HIRING PRACTICES University of California, Riverside January 16, :00 a.m. - Noon Nida Niravanh - Moderator Director, Risk Management UC Riverside Presented by: Barbara J. Ginsberg, Esq. Shondella M. Reed - Panelist Counsel, Labor & Employment Office of the General Counsel Jadie Lee - Panelist Director, Labor Relations UC Riverside Copyright 2013

2 2 AGENDA RULE SOURCES Federal, State, and Local Laws to be Aware of During the Hiring Process DISCRIMINATION Disparate Treatment; Disparate Impact; English Only/Preferred CONVICTIONS AND POLYGRAPHS Labor Code and EEOC Guidance DISABILITIES AND REASONABLE ACCOMMODATION ADA, Rehab Act of 1973, FEHA; Overview of Laws; Questions and Medical Exams IMMIGRATION- RELATED INQUIRIES Tips and Guidance

3 3 AGENDA APPLICATION STATEMENTS What the application reveals directly or by omission INTERVIEWS Tips to keep the interview productive and fair NEGLIGENT HIRING Obligation and liability BACKGROUND CHECKS Obtaining Info; Providing Info; Defamation PROBATIONARY PERIOD Using the employee release option

4 4 Hiring Practice “Rule” Sources 1 U.S. Constitution 2 Federal Law 3 Federal Regulations 4 State Constitution 5 State Law 6 State Regulations 7 Collective Bargaining Agreement 8 University Policies and Administrative Procedures/Regs 9 Past Practice

5 Important EEO Concerns when Hiring Discrimination against Protected Classifications –Federal: Title VII –State: Fair Employment and Housing Act (FEHA) Disability Discrimination –Federal: Americans With Disabilities Act (ADA) and Rehab Act of 1973 –State: Fair Employment and housing Act (FEHA)

6 6 Prohibited Discrimination - Protected Characteristics Race / National Origin / Color / Ancestry Gender / Sex / Pregnancy Age Religious Creed Physical or Mental Disability / Medical Condition Sexual Orientation Gender Identity Association / Perception Marital Status / Military Status

7 7 Prima Facie case: –Protected Characteristic –Qualified Individual –Adverse Action Legitimate Business Reason Pretext DISPARATE TREATMENT DISCRIMINATION Title VII and FEHA – General Discrimination

8 8 Policy or practice neutral on its face that has a disparate impact on a protected characteristic group; and Other non-discriminatory alternatives exist DISPARATE IMPACT DISCRIMINATION Title VII and FEHA – General Discrimination

9 9 May we require bilingual skills? May we prefer bilingual skills? May we require English-only or English competence?

10 10 Set minimum qualifications If using pre-employment tests, utilize examinations that test for the applicant’s ability to perform the duties of the position All pre-employment tests must be reviewed and validated by HR before use Conduct Job Analysis to Determine Required or Preferred Skills

11 11 Laws Protecting Disabled Workers Prohibits employers of 15+ employees from discriminating against “qualified” individuals with disabilities Requires reasonable accommodation for known disability of qualified applicant or employee unless undue hardship, or direct safety threat Americans with Disabilities Act – Title I (Federal)

12 Qualified = Meets job requirements Can perform essential job functions with or without reasonable accommodation No direct threat to safety or health of self or others Essential Functions = Position exists to perform function Function requires expertise or specialized skill Limited # of employees available to perform function 12 Laws Protecting Disabled Workers Disability = Physical/mental impairment that “substantially limits” one or more “major life activities” as determined without regard to mitigating measures Record of such impairment Being regarded as having such impairment Major life activity = Tasks & functions of central importance to daily life Americans with Disabilities Act – Title I (Federal)

13 Reasonable accommodation is not necessarily employee’s preferred accommodation, rather just an effective one Employee may reject proposed accommodation Enforced by EEOC and employers directly liable for policies and vicariously liable for supervisors Remedies are reasonable accommodation, reinstatement, damages (pay, future losses, pain and suffering), attorneys fees & costs 13 Laws Protecting Disabled Workers “Reasonable” accommodation Modification that would allow the employee to perform the essential functions of the job without altering the major purposes of the job Only must provide if “qualified” individual with known disability Can’t impose undue hardship on the employer’s operation Employer must engage in interactive process with employee with known disability Americans with Disabilities Act – Title I (Federal)

14 14 Laws Protecting Disabled Workers Covers employers with federal government contracts of $2,500 or more, or who receive financial assistance. Substantially similar to Americans with Disabilities Act Rehabilitation Act of 1973 (Federal)

15 15 Laws Protecting Disabled Workers Prohibits employers with 5+ employees from discriminating against person based on physical disability, medical disability, or medical condition. Greater protection against discrimination than ADA Requires reasonable accommodation of known disability or at request of employee for accommodation, unless undue hardship or would endanger health and safety of employee or others Fair Employment & Housing Act (California)

16 Qualified = Meets job requirements Can perform essential job functions with or without reasonable accommodation Perform duties in manner that won’t endanger to safety or health of self or others Essential Functions = Position exists to perform function Function requires expertise or specialized skill Limited # of employees available to perform function 16 Laws Protecting Disabled Workers Disability = Physical/mental disability or medical condition that “limits” (makes “difficult”) one or more “major life activities” as determined without regard to mitigating measures Mental/psych disorder/health impairment requiring special ed Being regarded as having such impairment Major life activity = Physical, mental, social activities and working Fair Employment and Housing Act (California)

17 “Reasonable” accommodation Accommodation that would allow the employee to perform the essential functions of the job without altering the major purposes of the job Can’t impose undue hardship on the employer’s operation Employer must engage in timely, good faith interactive process with employee with known disability or if employee requests accommodation Reasonable accommodation is not necessarily employee’s preferred accommodation Enforced by FEHC Employers directly liable supervisors/co-workers engaging in harassing or retaliatory conduct directly liable Remedies are reasonable accommodation, reinstatement, hire, transfer, promotion, tenure, damages (pay, future losses, pain and suffering), attorneys fees & costs, out of pocket expenses, training 17 Laws Protecting Disabled Workers Fair Employment and Housing Act (California)

18 18 Questions and Medical Exams Can I ask an applicant whether she is disabled or about the nature or severity of a disability? Can I require an applicant to take a medical exam? No. You may ask about ability to perform job- related functions and can ask them to describe or demonstrate how the job function will be performed with or without reasonable accommodation Only after a job offer is made and prior to the commencement of duties and only if everyone working in the job category must also take the exam

19 19 Questions and Medical Exams What happens if I don’t hire because the pre-employment exam shows a disability? Once an employee is hired, can I require a medical exam or ask questions about disabilities? You’ll need to be able to show reasons for not hiring are job-related and consistent with business necessity, and that no reasonable accommodation could have been made that would have made it possible to perform essential job functions Only if you can show the exam or inquiry is job- related and consistent with business necessity (based on objective evidence)

20 Convictions Labor Code §432.7 –Can’t ask applicant to disclose orally or in writing information concerning an arrest/detention that did not result in conviction, or referral to or participation in a diversion program, and employer can’t factor any record of the same into an employment decision –Convicted of a felony or misdemeanor via plea, verdict, finding of guilty (don’t rely on arrest as evidence of criminal conduct, but OK to consider underlying conduct) –Include statement that a conviction does not necessarily disqualify an applicant

21 Convictions See also EEOC Guidance –Consider nature of conviction, date of conviction, age at time of conviction, and circumstances of conviction –Look at the nature of the job and determine nexus between conviction and ability to perform job Labor Code §432.2 – No compelled polygraphs

22 Convictions Should you check the Megan’s Law website? Labor Code §290.46(j)(2) –OK if the information gathered is used to protect a person who “is or may be exposed to a risk of becoming a victim of a sex offense by the offender.” Be sure to get a written waiver to conduct a DOJ criminal background check

23 23 Immigration-Related Inquiries May I ask an applicant if, in the event he/she is hired, he/she will be able to provide verification of his/her legal right to work in the United States? You may use this as a basis for terminating employment with appropriate due process What if we become aware of the fact the employee lacks the legal right to work in the U.S.? Yes, but you can’t require the documentation until after the applicant is hired. Be sure to specify what constitutes appropriate verification documentation

24 24 Certification Include a statement on the application wherein the applicant certifies the information provided is true and correct and that no material information has been omitted

25 Look Closely at the Job Application Job Hopping? Gaps in employment? Inflated Position Titles? Puffery? Actual Job Responsibilities Salary History Reporting Relationships Education Actual Experience Writing Ability

26 26 INTERVIEWS Complete training on recruitment and training practices Ask Open-Ended Questions –Who, What, When, How, Why Ask Questions About Experience and Situations Consistent Questions for all Interviewees

27 27 Background Checks Protect personal and confidential information Obtain a signed written waiver to make inquiries and comply with Fair Credit Reporting Act Obtaining Information Limit the number of people who conduct checks Beware of defamatory statements Procedures for internal (UC system) requests for employee information vs. external requests Know who is authorized to provide information Providing Information Do not make defamatory statements Limitations on disclosure of performance information absent a current written release

28 28 Intentional False Statement Defames Individual’s Reputation Immunity May or May Not Be Available DEFAMATION

29 29 Additional Issues Employer has a duty to exercise reasonable care in hiring (and retaining) employees and to avoid exposing third parties to an unreasonable risk of injury Employer must take reasonable steps during the hiring process to satisfy this duty Thoroughly complete all steps of hiring process (background, criminal, pre-employment tests, references, driving (if appropriate) to determine fitness for duty and whether prone to violence NEGLIGENT HIRING

30 30 Additional Issues If an employee is not performing to standards, release the employee during the probationary period Ensure provisions of the CBA are followed (specific timelines; may also include remediation attempts) Ensure adequate documentation (employee may still file action) PROBATIONARY PERIOD

31 Question Answer Session

32 For additional resources, training, or information, please contact: Thank You Barbara J. Ginsberg Attorney at Law (562) Sue Anderson Staff Employment and Development Manager UCR hr.ucr.edu Lorena Velasquez Principal Employment Analyst, UCR hr.ucr.edu


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