Principals Executive Program School Law Academy

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Principals Executive Program School Law Academy
Interviews, Background Checks, And Health
Screening The Stepping Stones Tuesday, April
23, 2002
Jill WilsonBrooks, Pierce, McLendon, Humphrey
LeonardGreensboro, NC
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Selecting Employees
is your best opportunity to improve the
trajectory of your schools achievement.
BUT
it can appear to be a minefield of legal
barbs.(Negligent hiring, discrimination,
defamation, invasion of privacy)
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Selecting Employees
Fear of innocently stepping on a mine causes you
to shift your attention
from identifying future star employees
to avoiding a lawsuit.
This is not playing to win,but merely to avoid
losing.
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Selecting Employees
The Good News
You can play to win without fearing that you
might lose.
We just need to

• Identify the legal barbs, and2) Locate the
  stepping stones around them.

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Selecting Employees
Step One.
Identify the Legal Barbs.
Knowing what they are is half the battle.
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Identifying The Legal Barbs
They are

• Discrimination
• Negligent Hiring
• Cost Shifting
• Defamation

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Identifying The Legal Barbs
Discrimination
Selecting employees is, by definition, an
exercise in discriminationtreating applicants
differently based on particular
characteristics. Thus, what you ARE EXPECTED to
do is discriminate on characteristics that
indicate applicants suitability for the
job. What you CANNOT do is discriminate based on
aprotected characteristic.
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Identifying The Legal Barbs Discrimination
Protected Characteristics Include

• race/color
• sex
• religion
• national origin

• disability
• health condition
• economic condition
• past bankruptcy

• age
• past illegal drug or alcohol abuse
• arrest record

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Identifying The Legal Barbs Discrimination
Title VII of the Civil Rights Act

• Title VII of the Civil Rights Act prohibits
  discrimination based on the race, sex, religion,
  or national origin of
• the applicant.
• the applicants spouse or associates.
• the groups to which the applicant belongs.

Race Sex Religion National Origin
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Identifying The Legal Barbs Discrimination

• intentional discrimination.
• We dont hire Catholics.
• stereotypes or assumptions about job
  qualification.
• Women are more responsible.
• neutral actions that have disproportionate
  impact.
• We dont hire people with dark hair.
  (Disproportionately disadvantages
  African-Americans)

Discrimination Includes
Race Sex Religion National Origin
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Identifying The Legal Barbs Discrimination
Relevant Nuances
Sexual Harassment.
Employment opportunity may not be explicitly or
implicitly conditioned on an applicants response
to sexual conduct. Ill give you a job if you
sleep with me or He didnt flirt back.
Race Sex Religion National Origin
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Identifying The Legal Barbs Discrimination
Relevant Nuances
Pregnancy.
Employment opportunity may not be impacted by the
condition of pregnancy (as long as the applicant
is able to perform the essential functions of the
job) or the possibility of future
pregnancy. Shes due in 4 months and well have
to hire a substitute or Shell get pregnant and
quit before you know it.
Race Sex Religion National Origin
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Identifying The Legal Barbs Discrimination
Relevant Nuances
Religious Observances. The employee selection
process and decision must accommodate an
applicants religious observances so long as it
does not create an undue hardship on the
employer. All of our interviews are on Sunday
or We didnt hire her because she cant work on
Sundays.
Religious Observances.
Race Sex Religion National Origin
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Identifying The Legal Barbs Discrimination
The Age Discrimination Act protects applicants 40
years of age or older from discrimination on the
basis of age. The protections include
The Age Discrimination Act

• An applicant who is 40 years of age or older.
• Shell be ready to retire before she even gets
  started.
• An applicant that is not over 40 but who opposes
  employment practices that discriminate on the
  basis of age.
• Hell stir up our older employees.
• An applicant who has filed an age discrimination
  claim or participated in a proceeding under the
  Age Discrimination Act.
• Shes gonna make trouble.

Age
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Identifying The Legal Barbs Discrimination
The Americans With Disabilities Act protects
applicants who have completed a drug
rehabilitation program (or are currently doing
so) and are no longer using. He used to use
drugs. North Carolina law prohibits
discrimination based on the lawful use of lawful
products during non-working hours. She drinks
every weekend.
The Americans With Disabilities Act
Past Illegal Drug or Alcohol Abuse
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Identifying The Legal Barbs Discrimination
The Equal Employment Opportunity Commission
recognizes that minorities are arrested more
frequently than non-minorities. It therefore
prohibits the consideration of an applicants
arrest record. Look how many times hes been
arrested! NOTE An arrest record is different
from a conviction record.
The Equal Employment Opportunity Commission
Arrest Record
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Identifying The Legal Barbs Discrimination
The Americans With Disabilities Act prohibits
discrimination based on a disability or health
condition to the extent that the applicant can
still perform the essential elements of the job
given reasonable accommodation. Disability a
physical or mental impairment that substantially
limits an individuals ability to perform one or
more life activities.
The Americans With Disabilities Act
Disability and Health Condition
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Identifying The Legal Barbs Discrimination

• has a disability or health condition.
• We cant hire him, he only has one arm.
• has a corrected disability or health condition.
• We cant hire her, she cant hear without her
  hearing aid.
• the employer thinks has a disability or health
  condition, even if the applicant does not.
• We cant hire him, I think he has cancer.

The ADA applies to an applicant who
Disability and Health Condition
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Identifying The Legal Barbs Discrimination
The EEOC recognizes that minorities and women
tend to have greater economic difficulties. It
therefore prohibits consideration of an
applicants economic condition, specifically
including a past bankruptcy.
The EEOC
Economic Condition / Past Bankruptcy
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Identifying The Legal Barbs Discrimination
Indicia of economic condition

• home ownership
• Do you live in an apartment or own your own
  home?
• car ownership
• We cant hire him, he doesnt have a car to get
  to work.
• wardrobe
• We cant hire her, she cant afford a teachers
  wardrobe.

Economic Condition / Past Bankruptcy
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Identifying The Legal Barbs
Negligent Hiring
Defined A claim against a school employer for
damages caused by an incompetent or dangerous
school employee. Rationale Had the school
employer used ordinary care in selecting its
employees, it would have known that the applicant
it selected is incompetent or dangerous. The
Sobering News School employees are in positions
where they can cause great harm to children,
co-workers, and public property. The Relieving
News No North Carolina case has yet held any
employer liable on such a claim.
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Identifying The Legal Barbs
Cost Shifting
North Carolina law prohibits school employers
from requiring applicants to pay for the cost of
completing any examination or producing any
record. Therefore, the school employer must pay
for criminal record checks, drug tests, medical
exams, etc.
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Identifying The Legal Barbs
Defamation
Defined Publishing false and damaging
statements (orally or in writing) about an
individual. Elements 1) false, 2) damaging to
the complainant, 3) published, and 4) about
the complainant. We didnt hire him because
hes a child molester.(said to a non-school 3rd
party) Except When the school employer doesnt
know the statements are false and publishes them
only to the extent necessary to conduct internal
administration.
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Selecting Employees
Step Two.
Locate the Stepping Stones.
Knowing the paths of safety is the other half of
the battle.
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Interviews
The Stepping Stones
An interview is like an unscripted danceyou
cant be entirely sure where or into what posture
it will take you. However, one Obvious Rule
avoids most legal entanglement, and a few
scripted steps avoid the other thinly veiled
snares.
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Interviews
The Stepping Stones
The primary source of danger in interviews is
stumbling into one of the protected
characteristics of discrimination. Thus, to
avoid most legal entanglement,heed the Obvious
Rule
The Obvious Rule
AVOID THE PROTECTED CHARACTERISTICS!
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Interviews
The Stepping Stones
Do Not

• ask about the protected characteristics,
• make notes concerning them,
• discuss them, or
• consider them.

The Obvious Rule
The Danger
even if they are not actually included in the
selection decision, they can form the basis of a
discrimination claim if the applicant is rejected.
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Interviews
The Stepping Stones
A devout adherence to the Obvious Rule is not
mistake-proof. Be aware of other Thinly Veiled
Snares.
The Veil
The Snare
Thinly Veiled Snares
Attendance
Health Condition
Drug/Alcohol Free Workplace
Past Illegal Drug/Alcohol Use
Suitability for Team
Discrimination
Qualification for Job
Discrimination
Disability or Health Condition
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Interviews
The Stepping Stones
Design A Strategy. In advance that narrowly
elicits the information desired. Remember The
Obvious Rule. Ensure each inquiry avoids
protected characteristics. Limit to Essential
Functions. Exclude tangential functions. Anticip
ate Interview Creep. Identify which inquiries
are likely to take the interview off course.
Develop a means for getting it back on track.
The Stepping Stones
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Interviews
The Stepping Stones
Script Around Legal Barbs. Identify which
inquiries encroach legal issues and script your
steps around them. Prepare The Team. Before
each series of interviews, remind team of legal
boundaries, familiarize them with the interview
strategy, and review the scripted steps. Cheat.
Write down the interview strategy, the questions,
and any scripted steps so you can refer to them
during the interview.
The Stepping Stones
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Background Checks
The Stepping Stones
Professional Background

• Jobs held in last 5-7 years.
• 2 work-related references.
• Relevant information job qualifications, past
  job performance, work behavior, potential
  job-related weaknesses.
• If a past employer wont give information
• Remind him/her that NC law protects good faith
  truthful references from suit.
• Ask whether the employee is eligible for
  rehire.
• Never demand that a reference give you
  information.

Typical Checks
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Background Checks
The Stepping Stones
Criminal Background

• Check your Boards policy (NC law requires each
  board to adopt one).
• Applicants may not be required to pay for the
  check.
• Do not inquire or consider applicants arrest
  recordsdisproportionately disadvantages
  minorities.
• Consider convictions in context number, nature,
  recentness.

Typical Checks
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Background Checks
The Stepping Stones
Criminal Background, cont.

• Convictions are relevant only where they suggest
  a specific unfitness for the particular job
  applied for.
• A recent petty theft conviction is probably
  relevant to janitorial position. An old driving
  without a license conviction probably is not.
• A conviction should not automatically disqualify
  an applicant unless there is a likelihood that
  the applicant could create a significant safety
  or security risk.
• A child molestation conviction would
  appropriately disqualify for teacher position, 10
  year old trespassing conviction would not.

Typical Checks
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Background Checks
The Stepping Stones
Driving Record

• Driving record information will be included in a
  criminal background check.
• This information should be treated as relevant
  only to the extent that driving is an essential
  element of the job applied for.
• Relevant Position involves driving a school or
  activity bus.
• Not Relevant Driving a car to work.

Typical Checks
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Background Checks
The Stepping Stones
Credit Report

• Consideration of applicants credit information
  should be limited to positions that require
  responsibility for money or property, the use of
  financial discretion, and/or security.
• Arbitrary or unnecessary reliance
  disproportionately disadvantages women and
  minorities (per the EEOC).

Typical Checks
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Background Checks
The Stepping Stones
Verification of Certifications Licenses

• Certifications Verified by a copy of the
  degree(s) or certificates.
• License Verified by a copy of the license,
  evidence of its date of expiration, and/or a
  history of any disciplinary actions taken by the
  licensing entity.

Typical Checks
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Background Checks
The Stepping Stones
Personal Background Check

• A personal background check is different from a
  professional background check.
• Professionalcalling past employers
  professional references
• Personaltalking with neighbors, friends, and/or
  associates about an applicants general character
  and reputation
• School employers are discouraged from using
  these.
• Tend to render biased information.
• Likely to render sensitive information that
  should have no bearing on job qualification.
• Capable of rendering information on a protected
  characteristic.

Typical Checks
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Background Checks
The Stepping Stones
All of the typical checks can be performed by a
hired 3rd party. This triggers the Fair Credit
Reporting Act.

• The hired 3rd party is considered a Credit
  Reporting Agency.
• The school employer is subject to specific
  notification and disclosure rules.
• A personal background check is considered an
  investigative consumer report, which involves
  additional specific requirements.

Using a Credit Reporting Agency
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Background Checks
The Stepping Stones
School employers

• should not avoid using hired 3rd parties to
  perform background checks
• are encouraged to provide the notification and
  disclosure required by the Fair Credit Reporting
  Act, even when it is not legally requiredit is
  good protection.

Using a Credit Reporting Agency
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Background Checks
The Stepping Stones
Do It Late. The field of applicants to check is
reduced, which reduces expenses of time and money
and reduces the opportunity for legal
entanglement. Get It Signed. Stand-Alone
Disclosure Authorizationprotects against
invasion of privacy, defamation, and Fair Credit
claims. Waiverholds school and its agents
harmless for negligent handling of background
check information.
The Stepping Stones
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Background Checks
The Stepping Stones
Certify to CRA (only if using credit reporting
agency)certifies that proper disclosures have
been made. Be Job Focused. Limit background
check to what is directly relevant to the
responsibilities of the job applied for. Be
Fair. Consider negative information in the
context of all other information.
The Stepping Stones
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Background Checks
The Stepping Stones
Be Consistent. IN TimeApply the same
requirements and give the same consideration to
all applicants for a particular job. OVER
TimeApply the same requirements and give the
same consideration over time to each cohort of
applicants for a particular job. Disclose Upon
Receipt. Provide applicant with the information
from the check.
The Stepping Stones
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Background Checks
The Stepping Stones
Disclose Again Upon Adverse Action. If used a
CRA, this must also include the CRAs contact
information, a statement that the CRA is
uninvolved in the selection decision, and the
applicants rights under the FCRA Restrict
Access. Need to know basis. Document the
Process. Keep a checklist showing when each step
was completed.
The Stepping Stones
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Health Screening
The Stepping Stones
Most aspects of an applicants health are
protected by theAmericans with Disabilities Act
(ADA). The touchstone boundary of the ADA No
inquiry until a conditional job offer has been
made.
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Health Screening
The Stepping Stones
Protected by ADA

• Cannot perform until after a conditional job
  offer is made.
• May not revoke offer based on the exam outcome
  unless results indicate that applicant can not
  perform essential functions of the job given
  reasonable accommodation.
• Access to information must be restricted on a
  need to know basis.
• First aid safety personnel if emergency
  treatment may be required.
• Government officials investigating compliance
  with ADA

Medical Examinations
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Health Screening
The Stepping Stones
Excepted From the ADA

• Can test before a job offer is made.
• BUT, you might want to wait until after an offer
  to save time and moneywhy test if you might not
  hire anyway?

Illegal Drug Screening
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Health Screening
The Stepping Stones
Protected

• NC law prohibits discrimination against
  applicants who lawfully use lawful products
  during non-working hours.
• School employers are encouraged NOT to test for
  alcohol, but to rely on a drug and alcohol policy
  to prevent its use and influence during work
  hours.

Alcohol Screening
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Health Screening
The Stepping Stones
Evaluate On Other Grounds. Do not consider
health until after a conditional job offer is
made. Determine Need. Is a health check
necessary? If so, the reason must specifically
relate to applicants ability to perform the
specific job. Focus Narrowly. Examinations
should do no more than narrowly address the
reason for the exam. Consider Accommodation.
Before revoking conditional offer based on exam
results, consider applicants ability to perform
the essential functions of the job given
reasonable accommodation.
Stepping Stones
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Health Screening
The Stepping Stones
Be Consistent. IN TimeApply the same
requirements and give the same consideration
to all applicants for a particular job. OVER
TimeApply the same requirements and give the
same consideration over time to each cohort
of applicants for a particular job. Guard
Information. Need to know basis. Develop
Enforce a Drug and Alcohol Policy.
Stepping Stones
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Providing References to Prospective Employers
An Aside
Darned if you do and darned if you dont!
If I dont tell the employer, Ill be in
trouble for not giving a warning. If I tell
the employer, Ill be in trouble for talking bad
about my former employee. There were lawsuits
for both.
The Old Quandary
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Providing References to Prospective Employers
An Aside
NC law gives you immunity if

• the reference is truthful, and
• the reference is provided in good faith,

The New Deal
BUT, only do it upon request.

• Blacklisting a former employee is a
  misdemeanor.
• Blacklisting means attempting to prevent a past
  employee from obtaining employment with another
  employer.

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QUESTIONS?
Jill Wilson Brooks, Pierce, McLendon, Humphrey
Leonard Greensboro, NC [phone] JWilson_at_Bro
oksPierce.com