Avoiding the Employee from Hell: Some Thoughts on the Application and Hiring Process

AVOIDING THE EMPLOYEE FROM HELL:
SOME THOUGHTS ON THE APPLICATION AND HIRING PROCESS
Updated May, 2006

DEVELOPING AN APPLICANT POOL
1. Advertising
  1. Advertise for particular position openings
  2. Caution: Avoid hot button terms such as able-bodied, strong, healthy, English-speaking, young fresh ideas
  3. In a tight market consider alternative forums: Local papers/ethnic papers/radio/job fairs/schools
2. Outreach
3. Word of mouth / referrals
  
  Word of mouth and referrals are perfectly legal and legitimate and can be ways to attract high quality work force. However, over reliance has been used as evidence to establish hiring discrimination and can undercut outreach efforts.
4. Agencies
5. Temporary employees
BEST PRACTICE TIPS:

Do not rely on one source for developing applicant pool. Multiple sources of referrals are likely to increase diversity and more likely to obtain the skills needed.
THE JOB APPLICATION: PROCESS
1. Focus on particular job or jobs
2. Take applications only when there are openings
3. Application should specify job position sought or applied for -- state that application will not be accepted unless job sought is specified.
4. Require a completed application fully and accurately filled-in.
  1. Make sure employees do not think the application is simply a formality.
  2. Do not simply accept a resume.
  3. Apply to both white collar and blue collar applications.
5. Keep applications open only for a short, specified period of time.
  
  Note that record retention requirements do not regulate length of time application remains open.
  
  Do not reactivate by telephone calls or letter. Require resubmission of new application.
6. Do not accept resumes if there are no openings.
7. Consider only applications meeting minimum qualifications of job applied for.
BEST PRACTICE TIPS:

Develop policy about application process and stick to that policy. Train your receptionist and all managers about the application process. If not, you may be letting someone off the street set the terms.
THE JOB APPLICATION: CONTENT
1. Instructions:
  1. Complete and accurate
  2. Consequences of inaccuracies, misstatements or omissions
2. Personal background & educational background
3. Convictions and arrest records
4. No medical information
5. Specify job applied for and/or job description
6. Job history
  1. Full and complete from high school to date.
  2. Name supervisor(s) for each position.
  3. No gaps . . . account for time between jobs.
7. Specify at will status of employment and only written agreement signed by president [or some specific person] can modify at will employment status.
  
  [such language should be in the handbook as well]
8. Provision acknowledging that applicant if hired will have access to confidential company information and agrees to maintain its confidentiality during and after employment.
9. Provision that any inventions or new developments are property of company.
10. References
11. Consent to check referrals, acknowledgment of employment at will.
12. Drug and Alcohol testing
13. ADR (Alternative Dispute Resolution)
BEST PRACTICE TIPS:

Use the application to set and communicate the basic terms of employment.

Make the completed application a useful and working document by insisting on it being truthful, complete and thorough.

Be sure to treat all errors and omissions consistently.

Reference waiver should be stand alone and separately signed page that can be faxed to a third party (former employer or reference).

APPLICANT SCREENING�THE INTERVIEW

Interviews
1. Who conducts the interview? Are they adequately trained?
2. Is there a prepared or standardized set of questions?
3. Prepare for the interview
  - Review the information you have
  - Have a plan or outline in mind for the interview
    - Determine what topics you want covered
    - Determine what questions you want to ask
  - Work with co-interviewers:
    - If there are others who will interview with you, get together beforehand
    - Make sure you are on the same page
  - Check gaps in the resume or application
Good Interviewing Techniques
1. Arrange for no interruptions during the interview
2. Schedule adequate time
3. Get the applicant to talk
  - Ask open-ended questions
4. Ask questions that require the applicant to describe his or her knowledge, experience, and training as related to the job opening
  - Start at the beginning
  - Don�t just work off the resume or application
  - Ask the employee to summarize their education or work history on their resume
  - Check for inconsistencies in interview answers and application information.
5. Ask about likes/dislikes
  - What did you most like about school?
  - What did you like least about your last job?
  - Of all your supervisors, who was the best?
  - Of all your supervisors, who was the worst?
6. Then, ask why?
  
  And ask yourself: does the explanation make sense?
7. Ask about successes and failures
  - Then, ask why it was a success or failure?
  - How did they contribute to its success or failure?
  - What lessons did they learn?
8. Ask about problems that they encountered
  - Then, ask about how the problem was solved
9. Ask about workplace conflicts with co-workers or supervisors?
  - Ask about how such conflicts were resolved.
  - Ask if they were satisfied about they were resolved.
10. Save discussions about the job itself to the end.
11. Save questions about whether the employee can do the work to the end.
12. Some common pitfalls to avoid:
  - Don�t monopolize the conversation with you own talk
  - Don�t tell war stories or talk about your experiences, unless you are trying to illustrate a point
  - Don�t ask yes or no questions
  - Don�t be in a rush
  - Don�t hire just to fill a spot!
  - Evaluate the applicant immediately after (not during) an interview and evaluate based on objective, job-related reasons.
BEST PRACTICE TIPS:
If you take notes . . . beware of what you write,
write as if a judge or jury will be looking over your notes.
Unacceptable Questions / Acceptable Questions

Subject	Acceptable Inquiry	Unacceptable Inquiry
Race		Complexion, color of skin, coloring. What race are you?
Religion or creed		Religious denomination, religious affiliations, parish or church, religious holidays observed. Applicant may not be told this is a [Catholic, Protestant, Jewish] business.
National origin		Lineage, ancestry, national origin, descent, parentage, nationality. Nationality of applicant's parents, spouse.
Sex		Inquiry as to gender.
Sexual orientation		Prohibited in WA, Portland and many local Oregon jurisdictions; Often fits within sex discrimination framework
Family status	You may ask whether the applicant has any commitments that preclude him/her from meeting job schedules. If such questions are routinely asked, they must be asked of both sexes.	Specific inquiry about spouse, spouse�s employment or salary, children, child care arrangements or dependents. Number, name, addresses, ages of spouse, children, relatives not employed here. Name and address of person to be notified in case of accident or emergency.
Marital status		Asking about use of Ms., Mrs. or Miss. Whether applicant is married single, separated, engaged or divorced.
Relatives	Relatives already employed by this business.	[see family status above] OR: Bars refusal to hire solely because member of family is already employed. But permits employer from putting relatives in supervisory positions over one another
Pregnancy	Ask about how long intend to stay on the job or anticipated absences -- but ask of all applicants.	All questions as to pregnancy or medical conditions or history related to pregnancy or child birth.
Birth Control		Capacity to reproduce, advocacy of any form of birth control or family planning.
Age	Are you 18 years of age or older; if not, state your age.	How old are you? What is your birth date? What are the ages of your children? Inquiries designed to discover age, such as "What year did you graduate?"
Conviction/arrest record	Have you ever been convicted of a crime? (Give details.) In WA: Inquires about criminal convictions limited to those related to job duties within last ten years.	Have you ever been arrested?
Disability	Whether applicant can perform essential functions of the job with or without reasonable accommodation; Inquiries as to how applicant could perform with or without reasonable accommodation	Inquires about (i) nature, extent or severity of disability or whether the applicant requires a reasonable accommodation prior to conditional job offer, (ii) whether applicant ever file for workers� comp or inquiry.
Name	Asking if applicant ever worked for this business under a different name? Asking if additional information relative to name change, assumed name or nickname necessary to enable a check on applicant�s work record? From WAC 162-12-140	Original name of applicant whose name has been changed by court order or otherwise. Maiden name of married woman. If you have ever worked under another name, state name and dates. From WAC 162-12-140
Address or duration of residence	Place of residence. How long a resident of this state or city?
Birth place and date		Birth place or birth place of spouse or other relative. Requirement to submit birth certificate, naturalization or baptismal records.
Photograph	[only after hiring for identification purposes]	Requirement or option to affix photo to employment form at any time before hiring.
Citizenship	You may tell applicant that proof of citizenship or a permanent immigration visa or other legal right to work will be required at time or employment.	Of what country are you a citizen? Naturalized or native-born? Date citizenship acquired? Are parents, spouse, naturalized or native-born citizens of this country? Date citizenship acquired? �Whether applicant is citizen. Requirement before job offer that applicant present birth certificate, naturalization or baptismal divulge applicant's lineage, ancestry, national origin, descent, or birth place.� WAC 162-12-140:
Language	Language(s) spoken or written fluently, when position requires such ability.	What is your native language? How did you acquire your ability to read, write or speak a foreign language?
Education	Academic, vocational, professional education, public and private schools attended.
Experience	Work experience.
Military experience in United States	Experience in United States Armed Forces or State Militia. Service in a particular branch, e.g. Army, Navy. Did you receive a dishonorable discharge?	Experience other than in the United States Armed Forces or State Militia. Did you receive a discharge in other than honorable circumstances? WA: Cannot inquire about type or condition of discharge.
Organizations	Membership in organizations specified by applicant to be relevant to his/her ability to perform the job.	List all clubs, societies, lodges to which you belong.
Height and Weight		WA: Any inquiry not based on actual job related-ness.

Risky questions in Oregon

[marital status, childcare issues, disability or health, age]

Prohibited questions in Washington

WAC 162 12 140

[type or condition of military discharge or conviction record unless directly related to job; inquiries about homeownership or renting, etc.]

D. Special Consideration for Applicants with Disabilities

It is permissible to discuss the accommodation that may be needed and how the disabled applicant would perform the essential functions of the job when: (i) an applicant with an obvious disability, (ii) an applicant voluntarily discloses a hidden disability, or (iii) an applicant expresses the need for reasonable accommodation:

Some other considerations regarding disabled applicants:

Do not use any standard, requirement, qualification or other selection criteria designed to eliminate disabled applicants from employment consideration.
It is unlawful to reject a disabled applicant who otherwise is the best qualified.
It is unlawful to reject an applicant or discriminate against an employee because of a known disability of an associate or relative of that applicant or employee.
The law requires that any medical information about a disabled employee be retained in a confidential file physically separated from that employee's Personnel File.
It is unlawful to reject a disabled applicant because he or she cannot perform a marginal job function.
Federal regulations define "essential functions" with such considerations of the following:
- the reason the position exists is to perform that function;
- the limited number of employees in the work unit among whom the performance of that function can be distributed;
- specialized knowledge and skills required to perform the function;
- the amount of time spent performing the function;
- duties actually carried out by past incumbents in the position; and
- the consequences of not performing the function.

BEST PRACTICE TIPS:

Do not lightly reject a disabled applicant as unqualified because of your perceptions of his or her limitations arising from the disability. Consult with your Human Resources and upper management before taking such a step.

APPLICANT SCREENING�OTHER TOOLS
1. Supporting documentation
  1. Degrees and grades
  2. Certifications and licenses
2. Testing
  1. Concerns about risky/prohibited areas asked on tests
  2. Test vendor:
    1. Any litigation track record?
    2. Is vendor willing to stand behind the test?
      
      Will vendor pay for litigation or pay damages?
      
      Will vendor provide expert testimony?
3. References
  1. Consent and waiver on application form or separate paper.
  2. Follow-up: call all references provided
  3. Call former employers - union and nonunion.
  4. Ask references to provide other names and call them.
  5. Ask job related questions
4. Consumer record checks
  1. forms/waiver
  2. Discriminatory impact / job relatedness?
  3. Bankruptcy protection.
5. Use of public records
  1. Conviction records
  2. Worker compensation claim history
  3. Law suits and bankruptcies
6. Resume scanning services:
  1. Check on what criteria the service is using.
  2. Look into litigation history.
  3. Danger: does anyone who is submitted to service become an applicant?
BEST PRACTICE TIPS:
- Prepare for the interview and use the interview to learn about the employee.
- Confirm/ check on what was learned about the employee through references and documentation.
- Hiring decisions should be made for an understandable legitimate and lawful business reason.
UNION RELATED ISSUES

Moonlighting policy / union salting

BEST PRACTICE TIPS:
- Include prohibition on holding another full-time job.
- Request applications to be an original (watermarked, for example)--no copies.
BEWARE OF THE PRESSURE TO HIRE
1. Pressure of full employment
2. Costs of making a hurried hiring decisions
  1. Poor, unproductive or disruptive employee
  2. Discipline problems
  3. Law suits
3. How do you deal with the need or urge to hire someone today?
BEST PRACTICE TIPS:

Consider using a reliable outside agency to provide temporary workers.

Disclaimer: The materials available on this web site are for informational purposes only. Nothing on this site should be construed as legal advice or opinion. It is important that you consult an experienced attorney concerning your particular factual situation. Do not rely solely on the information provided on this web site.

� 2006 Newcomb, Sabin, Schwartz & Landsverk, LLP.

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