Effective Hiring Practices Manual Revised 11 10 2011 Guidebook

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Effective Hiring Practices
Hire the Best - Not the Rest

PURPOSE
This manual outlines specific steps to be taken during the hiring process. This process will result
in higher qualified applicants, increased productivity, and a reduction in employment related
problems while assisting the hiring manager in complying with both state and federal
requirements.
HIRING PRACTICES
Hiring is a manager’s most important job. This is emphasized in the graph below which
highlights the increase in EEOC claims filed in the last few years.

Bad hires become bad employees. This includes managers as well as hourly workers. EEOC
claims filed against a company are a direct result of a bad hire. According to a 2010 Jury Verdict
Research Survey, the median award for an employment related claim in 2009 was $326,640. The
highest average cost was for retaliation. The highest average jury award was for age or disability
discrimination. The most common lawsuit was for sex or race discrimination. These issues can
be the result of a bad hiring process.
In order to hire the right employees, it is imperative to prepare prior to interviewing. Preparation
must include the following steps:








Creation of ADA position descriptions
Interview worksheet / pre-written questions
Determination of candidate sources
Red flag screening process
Interview
Background checks
Orientation of new employees

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CREATION OF ADA POSITION DESCRIPTIONS
A position description questionnaire can be found under the Manager HR forms section of this
website. This questionnaire should be completed for each position (not employee) within the
Company. The purpose of a position description is to disclose the physical as well as the mental
requirements of the position. When completing the position description questionnaire, base all
criteria on the minimum qualifications for the job not the qualifications of the perfect candidate.
For example, the organization may want all employees to have a minimum of a high school
diploma; however, very few jobs in the United States require a high school diploma. A
salesperson needs to have sales skills, be able to read and write, and operate a computer, but a
high school diploma does not necessarily guarantee these skills.
As a result of the Americans with Disabilities Act, employers can no longer ask medically
related pre-employment questions. In 1994, the EEOC issued enforcement guidance on preemployment disability-related inquiries and medical examinations aimed at assisting its own
investigators in their legal analysis of such inquiries and exams. The guidance presents a lengthy
list of questions labeled “disability-related inquiries” that are illegal if asked before a conditional
offer of employment is made. This prohibition against physical/health questions is an effort by
the EEOC to ensure that employers do not discriminate against potential employees regarding
their physical or mental disabilities. The following are examples of questions that could lead to
problems with the EEOC and/or protected applicants/employees:







How many days were you sick last year?
Have you ever filed for workers’ compensation benefits?
How much alcohol do you drink each week?
Have you ever been treated for alcohol-related problems?
What prescription drugs are you currently taking?
Have you ever been treated for mental health problems?

If a question might solicit a response that would require an applicant/employee to disclose a
disability, it is probably a prohibited question and should not be asked.
The position description questionnaire allows the manager of the vacant position to outline the
physical and mental requirements of the position. The supervisor should complete the
questionnaire and submit it to Human Resources for review. Human Resources will prepare the
final position description and return it to the appropriate personnel within the Company. All
completed position descriptions should be placed in a binder. The binder should be kept at the
reception area or the location where applicants complete employment applications. Multiple
copies of the acknowledgment page should be kept with the position descriptions as well. Prior
to giving an application to a prospective applicant, the position description for the position in
which they are applying should be presented to the applicant. Instruct the applicant to read the
position description and complete the acknowledgment page along with the employment
application.
If an applicant states on the acknowledgment page that he/she can meet the minimum physical
and mental requirements of the position as outlined on the position description, the applicant
should be given an application to complete. If the applicant states that he/she cannot meet the
minimum physical/mental requirements of the position as outlined on the position description,
the applicant should be asked if he/she would require a reasonable accommodation.
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If the applicant completes the form and requests a specific accommodation, the employer must
examine the potential reasonable accommodation. No employer should make any decisions
based upon the nature of the disability itself without first examining what accommodation might
be available that would permit the person to perform his/her essential job functions. Even in
situations that may appear to be an obvious non-suitability for the job, failure to complete the
process of analyzing potential accommodations as may be required under state or federal law is a
mistake. However, if after analysis it is determined that no accommodation exists to enable a
potential employee to perform his/her essential job function, the employer can stop the interview
process at that time.
If an applicant states that he/she can meet the minimum mental and physical requirements of the
job in which he/she applied for and does not ask for a reasonable accommodation, and then it is
determined at a later date through either admission from the employee (once hired) or through
actual job performance, that the employee cannot meet the minimum physical or mental
requirements of the job, then the applicant may have knowingly misled the Company. In this
event, the employer must review the facts and circumstances on a case-by-case basis to
determine whether the employee knowingly was dishonest during the application process or
could reasonably be deemed to have intentionally misled the Company during the application
process. If the results of this review indicate that the employee was intentionally dishonest
during the application process, the employer may terminate him/her.
Position descriptions are the only method of outlining the essential functions and the minimum
physical and mental requirements of the job. Verbal non-documented attempts to convey the
physical and mental requirements of the job leave the Company exposed to future claims.
Position descriptions also improve the quality of the interview. The hiring manager can discuss
the position thoroughly with each applicant, and every applicant will have a better understanding
of the position and will be in a position to evaluate whether or not a match of interests exists.
Once the ADA position descriptions have been completed for all positions in the Company, an
interview worksheet comprised of pre-written interview questions is ready to be completed. A
sample worksheet titled “Sample Pre-Written Interview Questions” can be found under the
Manager HR forms section of this website.
INTERVIEW WORKSHEET / PRE-WRITTEN QUESTIONS
When a manager begins an interview that he/she has not prepared for, the chance of problems
arising from the interview or the chance of hiring the wrong applicant is high. The best way to
eliminate this problem is creating a list of 10 - 15 questions that all applicants will be asked. In
doing this the following will be accomplished:


The pre-written interview questions will ensure all applicants will be given the same
opportunity to succeed, resulting in fair and equitable treatment of all candidates.



The pre-written interview questions will minimize the chance that illegal or inappropriate
topics are discussed in the interview.



The pre-written questions will serve as documentation as to how interviews are
conducted and what questions are asked.

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The position description must be reviewed prior to writing the interview questions. The questions
should be based on legitimate occupational requirements as defined in the position description.
Answers to the pre-written questions will elicit secondary follow-up questions; however, it is
important to remember that questions concerning age, ethnic background, religious status,
marital status, economic status, disability status, sexual orientation, or political persuasion should
not be asked unless a bona-fide occupational reason exists to do so. For example, if an individual
is being hired to serve as a spokesperson for the elderly, it would be acceptable to ask about age.
An interview that is professional does not include illegal questions. The following chart is based
on guidelines and other directives issued by the various anti-discrimination agencies. It
summarizes the types of questions often asked and the acceptable and non-acceptable questions
associated with each topic.
Category

Age

Arrests,
Convictions

Availability for
work, Availability
for travel

Questions NOT to Ask
How old are you? What is your date of
birth? These questions may be asked if
they are accompanied by a statement
that federal and state law prohibits age
discrimination. However, age-related
questions may create the wrong
impression and should be avoided
unless there is a valid age-related rule in
effect: e. g. bona-fide apprenticeship
programs are not subject to age
discrimination programs.
Have you ever been arrested? As a
general rule, this question should be
avoided.
Can you work on Saturdays and
Sundays? Do you have children? What
are your child care arrangements? The
first question may be interpreted as a
sign of religious discrimination. The
other two questions, as a sign of
discrimination against women.

Birthplace,
Citizenship

Where were you born?

Clubs,
Associations

To what organizations do you belong?

Disabilities

Do you have a disability? Do you have
any health problems? Have you ever
filed for workers' compensation
benefits?

Acceptable Alternative

Do you meet the state
minimum age requirement
for work? Are you over 18?
16?

Have you ever been
convicted of a crime?
These are the hours of
work… -or- Our work
sometimes requires
overtime. Can you work
such a schedule? Do you
have any obligations that
would keep you from workrelated travel?
Are you legally authorized
to work in the U.S.?
Do you want to provide any
additional information that
relates to your ability to
perform the job?
Can you perform the
essential functions of the
job for which you are
applying? Can you show me
how you would perform
those functions?
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Economic Status

Military Service

Name

Have you ever had your wages
garnished? Do you own your own
home? Have you ever filed
Bankruptcy?
What type of discharge did you
receive? Have you served in another
country's armed forces?
Have you ever had your name
changed? What is your maiden name?

National Origin

What nationality are you?

Physical
Characteristics,
Photographs

Before meeting with applicant,
requesting that the applicant submit a
photograph.

Relatives

Who is to be notified in case of
emergency?

Religion

Do you have a religious preference?

Union Membership Have you ever worked with in a union?

No questions are
appropriate.

Are you a U.S. veteran? List
experience and special
education received.
Is there any additional
information we need about
your name to verify your
employment/education
record?
No questions are
appropriate.
No photographs until after
hire.
Do you have any relatives
who work for this
company?
No questions are
appropriate.
No questions are
appropriate.

The candidate evaluation form can be found under the New Hire forms section of this website.
Informing the candidate of what the interview process entails is recommended. Explain to the
applicant that the Candidate Evaluation form will be used to ensure each application is given the
same opportunity for the position by being asked the same questions. Let the applicant know that
you will be writing down their responses and that they should not be concerned; it does not mean
it was a bad response or good response. Inform the applicant that immediately after the interview
they will be scored in three areas: professionalism (as it applies to the job), experience (as it
applies to the Company needs), and desire (passion or just a job). Tell the candidate that at the
end of the interview process the candidate with the highest score will be hired. If the applicant
asks if they will be contacted after the interview, tell them only the successful candidate(s) will
be contacted.
Once the interview worksheet, comprised of pre-written interview questions is completed,
interviews need to be scheduled.
Scheduling Interviews
Give the ADA position description for the position in which the candidate is applying upon their
arrival. Have them read the position description and then sign the acknowledgement. If the
applicant states they can meet the minimum physical and mental requirements of the job,
proceed by giving them an application to complete.

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If the applicant states they cannot meet the minimum requirements and a reasonable
accommodation is not available, thank them for coming in and wish them the best. If the
applicant requests an accommodation, review the request (the Hotline is available for assistance).
If the accommodation is reasonable, can be accomplished, and will allow the applicant to meet
the essential functions of the job, proceed by giving the applicant an application to complete. If
the accommodation does not appear to be reasonable, contact an attorney or the Hotline at (877)
416-1405 for assistance. Once the candidate has completed the application, red flag screening on
the application will need to be conducted prior to the interview.
DETERMINATION OF CANDIDATE SOURCES
It is always a good idea to promote from within whenever possible. This sends a positive
message to all employees that the Company provides opportunity for upward mobility. Hiring
new personnel may not be necessary; job sharing (giving an employee additional responsibilities
as well as additional compensation) is a common form of promotion.
Promoting from within accomplishes two things. First, the character of the employee is known
which has obvious benefits. Second, the internal candidate understands how the Company
operates which reduces the learning curve significantly. However, situations do exist where
hiring an employee from outside is needed. This is typical in sales or management positions in
which the Company is looking to change the way things are done in order to increase production
or profits.
Before hiring an external candidate establish the pay and benefits package. Due to the Lilly
Ledbetter Act it is very important to review previous hiring practices for this position to ensure
the pay and other benefits are consistent with what this position has been paid in the past,
regardless of gender, race, age, religion, national origin, etc. In addition, review the exempt/nonexempt status of the position. Once these determinations have been made, decide how
candidates will be recruited, such as newspaper advertising, Internet advertising, networking,
referrals, head hunters, etc. If a print advertisement is used ensure the Human Resources
Department or the Hotline (877) 416-1405 reviews it before posting.
RED FLAG SCREENING PROCESS
The red flag screening process is based on the philosophy that good people do good things and
bad people do bad things. How employees performed at their last employer(s) is often how they
will perform in their next job.
In reviewing the application of thousands of employees that had either become problems or filed
adverse claims against their employer, a list of common problems found on the applications was
created. These common problems are considered red flags. The applications used to create this
list did not have all 8 red flags present, but the majority had at least 2 to 3 red flags. It will take
just a few minutes to review the candidate’s application to determine how many (if any) red flags
exist. The red flags are clearly defined with justification below. It is strongly recommended that
a red flag screening take place after the application is received, prior to the interview. In the
event an application has three 3 or more red flags, it is recommended that the application not be
considered for an interview. Simply thank the applicant for applying and let him/her know their
application will be kept on file. The results of the red flag screening will be extremely beneficial
for managers as well as the Company.

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

Incomplete application – Applicants who fail to complete the application will fail to
complete job tasks in the future. In addition, these applicants present an increased risk for
accidents and injuries as they tend to take short cuts and not follow established
procedures, including safety procedures.



Sloppy application – Applicants present an increased risk for causing personal injury to
either themselves or others, as well as property damage to equipment, due to sloppy
work.



Multiple jobs in the past 3 years – If an applicant has had six jobs in three years, there
is a good chance they will stay with your organization for six months. We are all
creatures of habit; what we did in the past we will repeat in the future. Multiple jobs can
also indicate a failure to become a part of a team environment.



New vocation after many years in one industry – Unless the applicant has recently
graduated from an educational program and is now certified or degreed in a new field,
this applicant is typically problematic because they are leaving the industry they have
worked in for years for reasons that are typically negative.



Employment gaps – This applicant may have gaps for numerous reasons some
acceptable, some not acceptable. Explore the reasons for the gaps with the applicant
during the interview. However, ensure illegal interview questions such as “Did you miss
any work due to workers’ compensation claims or illness?” are not asked. Ask the
candidate simply to explain the gap in employment. If they provide an unsatisfactory
answer, this would be considered a red flag.



No references listed or previous employer(s) are now out of business – One of the
ways applicants hide prior employment or prior negative issues such as prison time, is to
either not list references, list themselves as self-employed, or find businesses in town that
have closed to use as references.



Self-employed for more than 7 years – Most studies show that entrepreneurs who make
it 7 years will be successful. If an applicant states they have been self-employed for 7
years but now need a job, the applicant is either a poor business person or is attempting to
hide something; neither situation presents a good applicant.



Military without DD214 - Prior military personnel are very familiar with the form
DD214 discharge document. If an applicant states they are prior military but they do not
have or have never heard of a DD214, they are not being honest and this is a red flag.

INTERVIEW
The interview should not take place until the red flag screening has been accomplished. After
the interview has been completed, reference checks and the criminal background checks will be
processed for successful applicants.

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As discussed above, every attempt should be made to have a pre-written list of bona-fide
occupational interview questions. This will assist in controlling the interview and preventing the
applicant from taking control and discussing issues that should not be discussed. This list of
questions will also allow the interviewer to gather the information needed to make a fair and
impartial decision. The interview should be scheduled for a time when the interviewer will not
be interrupted and remain professional. Stick to the list of pre-written interview questions and
the position should not be described to the applicant until after the interviewer has asked all their
questions. If the applicant knows what the ideal candidate would be and what the job entails,
he/she will structure their answers around the position and what they think the interviewer wants
to hear. In the event the applicant goes off on a tangent and begins discussing issues that you do
not want to discuss in an interview, simply raise your hand and respond with “I understand, but
let me ask you this…” and proceed to the next question. Regardless of how the interview went
or what you thought of the applicant, always thank them for their time and wish them success in
their job search. You may be the only person from the Company that the applicant will ever
come in contact with. Make sure the interview is professional and a positive experience for the
candidate. Once the interview has concluded, the hiring manager should evaluate the
applicant. The 10 point system is one method of evaluation. It is recommended that candidates
be evaluated utilizing the following criteria:
Professionalism (as it applies to the job)
The professionalism required of a janitor is significantly different than the professionalism
required of a Chief Financial Officer.
Related Experience
Has the applicant worked in the same position or in a similar position before? Has the
applicant worked in a similar environment? For example, a person that has never worked
outside would probably not be an ideal candidate for a construction superintendent
position. Some career field changes take place as a result of completion of an educational
program or college degree. However, it is not always a good idea to take a person who has
established a career path in one area and without valid reason is making a career change;
these hires typically are not successful and lead to other problems.
Desire for the Job
Did the applicant ask for the job? Did the applicant show genuine interest in the position and
the Company? Most successful candidates that become successful employees will ask for the
job. Hiring a salesperson who did not try to “close” you on hiring them will more than likely
result in a below average producing salesperson. Hiring an accountant who did not ask for
the job is more than likely going to result in an employee that will stay until a better offer is
received.
The 10 point system method of evaluation involves awarding the applicant a score of 10 in their
strongest category (10 being the highest score). For example, if five candidates score as follows:

Candidate #1
Candidate #2
Candidate #3
Candidate #4

Professionalism
7
10
6
8

Experience
8
9
7
10

Desire
10
8
10
8

Total
25
27
23
26

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Candidate #1 has average professionalism, good experience, and outstanding desire for the
job. Candidate #2 has outstanding professionalism, great experience, and above average desire
for the job, etc. By utilizing the 10 point system, you will remember a candidate’s strongest
quality and will be in a better position to justify your hiring decision. Based on the 10 point
system, the candidate with the highest overall score will be hired. In the above example,
Candidate #2 would be offered the position. Utilizing this process will ensure the best candidate
is hired and the hiring manager will be able to justify the selection in the event a claim or charge
of discrimination is filed. All candidates should be scored immediately after their
interview. This will reduce the potential of confusing applicants and their responses, and
therefore hiring of the wrong applicant. A candidate’s score should be recorded at the top of the
interview worksheet. Once all interviews are completed, calculate the interview scores and
select the applicant with the highest score to proceed to the next step, checking references and a
background investigation.
REASONABLE ACCOMMODATION
The goal is to provide reasonable accommodation to qualified individuals with disabilities who
are employees or applicants for employment, unless to do so would cause undue hardship.
Qualified individuals are those applicants or employees who can perform the essential functions
of the position with or without a reasonable accommodation.
In general, an accommodation is any change in the work environment or in the way things are
customarily done that enables an individual with a disability to enjoy equal employment
opportunities. There are three categories of “reasonable accommodations”:
1. Modifications or adjustments to a job application process that enable a qualified applicant
with a disability to be considered for the position such candidate desires; or
2. Modifications or adjustments to the work environment, or to the manner or circumstances
under which the position held or desired is customarily performed, that enable a qualified
individual with a disability to perform the essential functions of that position; or
3. Modifications or adjustments that enable a covered entity's employee with a disability to
enjoy equal benefits and privileges of employment as are enjoyed by its other similarly
situated employees without disabilities.
Reasonable accommodation is available to qualified applicants and employees with disabilities
as defined by the ADA. Reasonable accommodations will be provided to qualified employees
regardless of whether they work part-time or full-time, or are considered probationary.
Generally, the individual with a disability must inform the employer that an accommodation is
needed.
Requesting an Accommodation
While an individual with a disability may request a change due to a medical condition, this
request does not necessarily mean that the Company is required to provide the change. A request
for reasonable accommodation is the first step in an informal, interactive process between the
individual and the employer.
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In some instances, before addressing the merits of the accommodation request, the Company
needs to determine if the individual's medical condition meets the ADA definition of
“disability,” a prerequisite for the individual to be entitled to a reasonable accommodation.
A family member, friend, health professional, or other representative may request a reasonable
accommodation on behalf of an individual with a disability. Of course, the individual with a
disability may refuse to accept an accommodation that is not needed.
Determining Reasonable Accommodation or Undue Hardship
The Company will assess on a case-by-case basis whether a particular reasonable
accommodation is needed or whether the accommodation would cause an undue hardship.
Whenever an accommodation is requested or is obvious to the Company, an interactive
discussion with the employee regarding the possible need for an accommodation will begin. The
exact nature of the dialogue will vary. In many instances, both the disability and the type of
accommodation required will be obvious, and thus there may be little or no need to engage in
any discussion. In other situations, the Company may need to ask questions concerning the
nature of the disability and the individual's functional limitations in order to identify an effective
accommodation.
In some situations, including FMLA leave, it may be necessary for the Company to submit an
ADA Reasonable Accommodation Questionnaire (which can be found under the Manager HR
forms section of this website) to the employee’s treating physician in an effort to ascertain the
need for and the type of accommodation required.
While the individual with a disability does not have to be able to specify the precise
accommodation, he/she does need to describe the problems posed by the workplace barrier.
Additionally, suggestions from the individual with a disability may assist the Company in
determining the type of reasonable accommodation to provide.
Undue hardship is defined as a significant difficulty or expense, and focuses on the resources and
circumstances of the Company in relationship to the cost or difficulty of providing a specific
accommodation. Undue hardship refers not only to financial difficulty but also to reasonable
accommodations that are unduly extensive, substantial, disruptive, or those that would
fundamentally alter the nature or operation of the business.
BACKGROUND CHECKS
Recent studies show that 80% of employers conduct some form of a background investigation on
job applicants. This in turn tells us that criminals will apply for positions at 20% of companies
that do not conduct background checks. A recent study conducted by the Society for Human
Resources Management revealed the reasons employers conduct background checks is charted
below:

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The table below displays the information found in these background checks:

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The federal Occupational Safety and Health Act (OSHA) applies to virtually every employer.
OSHA regulations include the General Duty Clause which requires the employer to furnish
employees with employment that is free from recognized hazards (thieves, rapists, and
murderers) likely to cause death or serious injury. Today managers can be held personally
responsible for who they employ. Areas of concern that apply to the hiring process include:
Negligent Hiring – Hiring someone whom you knew or should have known was a
recognized hazard, had you done your due diligence as a hiring manager. For
example, hiring a convicted rapist and exposing your employees to which results in a
rape.
Negligent Entrustment – Entrusting someone in a position or duty in which a
reasonable person would determine such trust was negligent due to current or
previous actions on the part of the employee or the applicant. For example, hiring
someone with multiple DWI convictions to be a driver and they cause an accident
while under the influence.
Under the General Duty Clause you are responsible for who you hire and who you expose
employees, vendors and customers to. The best way to avoid such claims is to conduct a
background investigation. However, prior to conducting a background investigation, you must
have documented approval from the applicant; this can be accomplished using the Employment
Background Investigation Authorization form, which can be found under the New Hire forms
section of this website.
Reference Checks
All applicants should be informed that each previous position listed on their application must be
accompanied by a reference name and telephone number, and those references are required and
will be checked. In doing this, you may dissuade a dishonest applicant from completing an
application. In addition, you are informing them that they must complete the application. Once
the Pre-Employment Screening Acknowledgement form is completed, it should be mailed or
faxed to the applicant’s previous employers, notifying them that you will be calling. The hiring
manager should follow-up with a phone call to check each reference. When conducting a
reference check, it is imperative to verify dates of employment, job titles and duties, and when
possible, eligibility for rehire. You cannot ask previous employers any questions that you cannot
legally ask the applicant themselves. Questions concerning previous workers’ compensations
claims, marital status, etc., must be avoided. The information you gather from each reference
check can be written on the application next to the previous employer's name and address. In the
event an applicant has lied about previous employment, either dates or duties, they should be
disqualified from further consideration for employment with the Company. When conducting
reference checks the following should be considered:






What was the general demeanor of the person giving the reference?
Did you feel at ease talking to them or did they immediately get nervous once you
mentioned the employee’s name?
Did the dates of employment match what the applicant listed on the application?
Did the job duties match what the applicant described on the application?
Did the pay match what the applicant claimed they were being paid?
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


Was the reason for leaving consistent with what the applicant claimed?
Is the applicant eligible for rehire?

Once the reference check has been conducted, a criminal background check needs to be
completed.
Criminal Background Check
All applicants being considered at the point in the hiring process should have a criminal
background check performed. This can be accomplished either through Human Resources or
other outside vendors. Inquiries or questions concerning criminal arrest records are strongly
discouraged. The EEOC states that because members of certain minority groups are more likely
to be arrested, these inquiries can have an illegally adverse impact on such groups. In some states
(i.e. Michigan) it is a violation of an applicant’s civil rights to inquire as to his/ her arrest record,
except for information related to felony charges. In other states, it is now illegal to ask about
convictions or any criminal record on the application. Ensure you are familiar with the laws
specific to the state. The EEOC states that inquiries regarding criminal convictions can have an
adverse impact on members of certain minority groups. However, the EEOC and the courts
recognize that employers have a legitimate right to know whether an applicant has ever been
convicted of crimes. This concern is particularly significant when considering the recent activity
regarding negligent hiring and the requirement for the employer to provide a workplace free
from recognized hazards.
For example, a day care center would have tremendous liability if they hired a convicted child
molester and did not complete due diligence and check employees before they are hired. The
same philosophy could be utilized in all places of employment. How much liability would an
employer have after a current employee brutally assaulted a fellow employee, and it was later
shown that the employee committing the assault had a criminal record for assault?
In addition, when cash, drugs, valuable property, or one-on-one customer, patient, or client
contact is involved, the employer has a moral as well as legal responsibility to ensure the safety
of all involved. In these cases, the criminal background check is valid. However, if a question
regarding criminal convictions is included on the application and a criminal background
investigation will be conducted, a statement such as “Criminal convictions are not an absolute
bar to employment, but will be considered only with respect to the specific requirements of the
job for which you are applying.” This will help in avoiding discrimination claims. In several
states job applications that ask about prior arrests or convictions must include a statement
advising applicants that they can answer “no record” in response to questions about sealed or
expunged records of arrests, criminal court appearances, or convictions. Another method of
avoiding discrimination claims is to be consistent with decisions. If the policy of the Company
is not to hire convicted rapists within a specific department, that policy should be followed
regardless of the race, age, ethnicity, gender or religion of the applicant. Applicants that lie on
their application regarding felony convictions should be disqualified from the application
process.

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Fair Credit Reporting Act
The Fair Credit Reporting Act requires employers to give prior notice of background checks and
obtain the applicant’s written consent before using the Employment Background Investigation
Authorization form, which can be found under the New Hire forms section of this website.
When an employer utilizes an outside third party to gather such information or pays for such
information, it is considered a consumer report or investigative report. These reports must be
treated in the same manner as a credit report. Hiring a job applicant with an undesirable
background, criminal record, or falsified credentials can carry enormous economic and legal
consequences. As such, it is recommended that employers conduct background screenings on all
applicants prior to making a job offer. Background prescreening is normally conducted by
outside agencies called Consumer Reporting Agencies (CRA). Beyond calling former employers
as references, employers generally cannot conduct such screenings in-house due to the
specialized resource and knowledge involved.
Pulling criminal background reports or other consumer reports without permission can create
problems. Ensure that prior to pulling these reports an authorization has been received in
writing from the applicant as discussed above.
Following the four steps below is recommended.
Step 1 – Prior to supplying a consumer report, an employer must certify to the Consumer
Reporting Agency (CRA) that they will follow all steps set forth in the Fair Credit Reporting Act.
These requirements are explained in a document prepared by the Federal Trade Commission
entitled, “Notice to Users of Consumer Reports.”

The FCRA requires that a Consumer Reporting Agency provide a copy of that document to every
employer who requests a report. The notice can be found on the FTC’s website.
A special procedure is necessary when the employer requests a Consumer Reporting Agency
(CRA) obtain employment references. When the CRA is merely verifying factual matters, such
as the dates of employment or salary, no special procedure is necessary. However, when the
CRA is asking for information such as job performance, it is an investigative consumer report.

15

Step 2 – When an employer receives a consumer report and intends not to hire the applicant
based upon the report in any way, then the applicant has certain rights. The EEOC recently
released a statement which prohibits companies from having a blanket “no hire convicts” policy.
The criminal offence must be evaluated and matched against the specific position. The following
questions should be considered:






How long ago was the crime?
Was it a violent crime?
If it was drugs, did the person go through rehab? (may be qualified under the
ADA if so)
Is the crime related to the job in which they are applying for? (i.e. applying for a
controller position with an embezzlement crime)
Each situation is different and needs to be reviewed as a standalone situation.

A special procedure is necessary when the employer requests a Consumer Reporting Agency
(CRA) obtain employment references. When the CRA is merely verifying factual matters, such
as the dates of employment or salary, no special procedure is necessary. However, when the
CRA is asking for information such as job performance, it is an investigative consumer report.
If the consumer report reflects a violent crime that was recent, the employer is well within their
rights to reject the applicant and discontinue the process. However, if an applicant has a DWI on
their record, but the position in which the applicant is applying does not include driving as a job
duty, the employer should not use that previous act against them. Clearly, an applicant with a
criminal record relating to financial improprieties would not be eligible to work in an area in
which they would have access to the Company or customer’s financial information. However,
before taking the adverse action, the employer must provide the following information to the
applicant:
Step 3 – A letter to the applicant explaining the situation (Pre-Adverse Action Notice), a copy of
the consumer report and the FTC document, “A Summary of Your Rights under the Fair Credit
Reporting Act,” which can be found under the New Hire forms section of this website.
Even if there are other reasons for not hiring an applicant in addition to matters contained in a
consumer report, the adverse action notification procedures still apply. If the intended decision
was based in whole or part on the consumer report, the applicant has a right to receive the report.
The applicant should be given a reasonable period of time (72 hours from receipt of initial
adverse action notice) to dispute the information on the consumer or investigative report. If the
dispute is unacceptable or lacks substance, then you would proceed to the next step as defined
below. However, if the applicant provides documented evidence that they are a victim of identity
theft, or the records should have been sealed or expunged, contact the Hotline at (877) 416 –
1405 as soon as possible.
Step 4 – In the event the applicant did not dispute the information or his/her dispute was
unacceptable, and you intend to make the decision final, the employer must take one additional
step. The employer must send the applicant a Final Adverse Action Notice informing the job
applicant that the employer has made a final decision, another copy of the “A Summary of Your
Rights under the Fair Credit Reporting Act” FTC form, and another copy of the consumer or
investigative report. The Final Adverse Action Notice can be found under the New Hire forms
section of this website.
16

Internet Background Checks
A June 2010 survey by JobVite reported that 92 percent of companies hiring in 2010 currently
use, or plan to recruit through, social media sites. Problems posed by such searches are serious.
The information posted on social media sites typically is intended only for social, not business,
purposes. Because false and misleading information can be posted, the reliability of the
information can be questionable at best. Even if the posted information is true (e.g. historical
information about Nazism), someone other than the applicant might have been responsible for
posting it. In addition, Internet searches can be used to support claims of discrimination or
invasion of privacy if they reveal information that a prospective employer is not legally
permitted to explore, such as arrest records, gender, gender identity, genetic information, sexual
orientation, race, color, national origin, marital status, and disability. Many states have laws that
protect individuals against adverse action based on certain types of lawful conduct, such as
political activity or consumption of tobacco products.
The Fair Credit Reporting Act (FCRA) and comparable state laws pose other potential problems
with Internet searches. While it is clear that the FCRA requires employers to obtain written
consent from applicants before hiring a background check company to conduct background
checks, no court has yet addressed whether the FCRA applies to a company’s screening of
candidates’ social networking pages. So, given the lack of clarity in the law, how can employers
fulfill their responsibility to provide a safe and secure workplace and protect their own business
interest while avoiding claims (discrimination, defamation, invasion of privacy)?
Employers can secure the written authorization for Internet searches on the job application. A
disclaimer can be added to the application stating that refusing to authorize an Internet/electronic
media search will not result in the automatic rejection of a candidate’s application, as well as a
confirmation of their firm commitment to nondiscrimination and equal employment opportunity.
In addition, the employer should be consistent in conducting Internet searches; inconsistency for
any reason could expose the employer to a discrimination claim.
Once the background check process has been completed, an offer of employment can be
extended. This offer should come in the form of a letter. An offer letter is written to a job
candidate to formally offer a position. The offer letter should specify the title of the position
being offered, the person to whom the new employee will report, the start date, the starting
salary, and any special requirements or compensation. The letter also can note the working
hours, where the person reports the first day, and pertinent information about the commencement
of benefits or other programs. Many companies now include an at-will employment paragraph
and reserve the right to change benefits. Be sure the wording of the letter does not promise the
prospective employee employment for a specified period of time if you do not wish to create a
contract of employment. Some companies have specific requirements that need to be indicated in
the letter as well. A drug test that is a condition of employment should, for example, be
mentioned in the offer letter.
Candidates often request letters to verify the terms of offers prior to giving notice at their current
place of employment. Some organizations require individuals accepting offers to sign and return
documents indicating they accept the terms.

17

NEW EMPLOYEE ORIENTATION
It is important to introduce the employee to the Ethos HR Online website and show them where
the employee handbook is located and the contact information for the email hotline and phone
hotline. All new employees should be required to complete the training listed on their Ethos HR
Online homepage under My Curriculum as soon as possible. Several of the training topics such
as the Emergency Action Plan and ADR training (if applicable) are required to be taken the first
day of employment. The best time to accomplish this is on the employee’s first day of
employment before they begin their actual job duties.
The Buddy System
We do not always realize the cost of hiring a new employee. Not to mention the cost of hiring
the wrong employee! When we consider the cost of the advertisement and the manpower to
screen applications, perform reference checks, interview, and select new employees, hiring is
very expensive. In addition, most new employees are a liability for the first 30 days until they
learn their job. A lot of time and money is spent on recruiting the ideal candidate and on their
first day they may be approached by the one employee in the Company that never has a positive
thing to say and dwells on the negative. All the Company’s good employees are working and
doing what they are being paid to do. After a couple days of the new employee being ambushed
by the negative employee, the new employee begins to question his/her decision to come to work
for the Company. The new employee often either joins this negative mindset or quits after just a
few weeks. An applicant’s first impression is based largely on their initial few days at work. For
this reason, it is very important that these first few days begin in a positive manner. It will play a
huge role in determining the applicant’s longevity and success with the Company. As a
professional manager, it is important to invest a few days in all new employees. This investment
begins with the buddy system. Take the time to introduce the new employee to everyone. Once
the introductions are completed, assign a great employee to be a buddy for the new
employee. Let the new employee know that should he/she have any questions, the employee
assigned to them can help him/her get the answers they need. Upon completion of the first week
of work, take approximately 10-15 minutes to sit down with the new employee and answer any
questions they have and at the same time find out if they are pleased with their decision to come
to work at the Company. An ideal time for this is when the new employee returns a signed
acknowledgment sheet from the policies and procedures manual. Lastly, you should follow-up
with the employee periodically during the first 90 days of employment.
HIRING PRACTICES SUMMARY
Step 1: Create ADA position descriptions for each position within the Company. A position
description questionnaire can be found under the Manager HR forms section of this website.
Completed ADA position descriptions should be kept in a binder located where applicants arrive
to apply for positions within the Company.
Step 2: Create an interview worksheet comprised of pre-written interview questions for each job
within the Company. A sample worksheet, titled “Sample Pre-Written Interview Questions” can
be found under the Manager HR forms section of this website.

18

Step 3: Prior to hiring for a vacancy, review the position to determine if it needs to be filled, if
job sharing is possible, or if an in-house promotion is a possibility. If not, determine where you
will get your exterior candidates. In the event you write an employment advertisement, have
Human Resources review the ad prior to submission.
Step 4: When applicants arrive have them read the ADA position description and complete the
ADA position description acknowledgment form. If they can meet the requirements as outlined
on the position description or a reasonable accommodation exists, give the applicant the
application to complete.
Step 5: Once the application is complete, conduct the red flag screening. If the application has
less than 3 red flags, conduct the interview.
Step 6: Utilize the interview worksheet with the pre-written questions for the interview. Explain
the process to the candidate and then score the applicant immediately upon completion of the
interview.
Step 7: Conduct background checks and reference checks on the top applicant(s). Adhere to the
requirements of the Fair Credit Reporting Act in regard to authorization/releases and adverse
action requirements if applicable.
Step 8: After selection of applicant, orientate the new employee, make sure training is
completed, and assign a mentor to the new employee. You should follow-up with the employee
periodically during the first 90 days of employment.
Should you have any questions please contact the phone hotline at (877) 416 – 1405 or the email
hotline using the link located on your Ethos HR Online homepage.

19



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