Michael S. Glassman. Dinsmore & Shohl LLP

Transcription

1 The Council of Independent Colleges: Balancing Multiple Priorities Preventive Law I: Adhering to Institutional Procedures and Policies - Hiring Practices Michael S. Glassman Dinsmore & Shohl LLP

2 Michael S. Glassman Cincinnati, OH (513) Mike has practiced management side labor and employment law for more than 30 years, representing employers regionally and nationally in employment disputes and matters of all types in federal and state courts, administrative agencies and in arbitral forums. Mike chairs Dinsmore's Employment practice and is also a frequent speaker and trainer on labor and employment law topics.

3 Considerations Prior to Formal Search

4 The Importance of a Good Hire and Hiring Risks Tips for navigating the maze of hiring restrictions Seemingly innocuous advertisements or innocent questions as on an application or during an interview may violate a host of federal and/or state laws Creating a contractual obligation during the interview

5 The Importance of a Good Hire and Hiring Risks The effect of tenure on the hiring process Careful selection will permit furtherance of institution/organization goals and enrich campus community A poor hire may result in early separation, costly new searches, wasted resources in managing a poor hire, and heightened legal risks Take your time!

6 Considerations Prior to Formal Search There is no law requiring that you hire anyone other than the most qualified candidate Hiring decisions must be within the authority of the hiring body and consistent with the policies and procedures of the governing board Determine whether there is a collective bargaining agreement that affects hiring practices

7 Considerations Prior to Formal Search Identify Search Committee Extensive training for all committee members A lesson in confidentiality Set parameters for screening process Address use of social media in the hiring process at the outset Determine items to be considered in application package Identify whom the point person will be for all applicant inquiries

8 Key Legal Basics All Department Chairs Must Know Discrimination laws such as Title VII, ADEA, ADA, GINA Disparate Treatment v. Disparate Impact Bona Fide Occupational Qualification (BFOQ) Affirmative Action Employer Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and Vietnam Era Veterans Readjustment Assistance Act Obligations of Covered Employer

9 Key Legal Basics All Department Chairs Must Know Religious Preferences in Hiring It is not unlawful per se to prefer that certain positions at religiously-affiliated institutions be filled by members of the same religion. Whether a school may lawfully use religious preference in hiring is fact intensive and depends upon the religious nature of the institution and the actual duties and responsibilities of the individual. Contractual Commitments Collective bargaining agreements, tenure process, and offer letters

10 Advertisements and Job Descriptions DO watch your language DON T discriminate DO include equal opportunity employer language DO include statement of qualifications necessary for the job DO state whether the position is tenure-track or not

11 Strategic Advertising Be strategic about where to advertise the job opening to encourage a diverse and qualified applicant pool Allow time in the search process to build a pool What methods have you found to be successful for locating a diverse and qualified pool of applicants?

12 The Application DO require that all applicants sign their applications DO warn applicants that providing false information is terminable offense DO notify applicants in advance of any screening practices such as background or credit checks DO notify applicants whom the point person is for answering inquiries

13 References and Background Checks

14 References and Background Checks Competing Interests Dilemma is compounded by reluctance of employers to respond to requests for information regarding former employees. Scope of Inquiry Limit pre-hire inquiries to job-related information and be prepared to articulate the business justification for any inquiry

15 References and Background Checks: Reference Checks DO require that all applicants list employment references DO obtain applicant s written consent to contact present and former employers DO have applicant sign authorization and release DO document all requests and responses DO keep all documentation and reference-related materials confidential

16 References and Background Checks: Reference Checks Who? What? When? If present or former employers refuse to respond or provide name/rank/serial number response, what do you do?

17 References and Background Checks: Internet/Social Media Searches Concerns The concern is that, when conducting an internet/social media search an employer may discovery protected characteristic which may taint ability to make unbiased hiring decision. Despite concerns, an employer may legitimately use social media to decline to extend interviews or employment offers to candidates. The key is consistency. An employer must perform a similar search on ALL job applicants to avoid a disparate impact claim made by an applicant. Remember that the information posted online may not be an accurate reflection of the individual now applying for a particular position.

18 References and Background Checks: Internet/Social Media Searches Best Practices The intention to use an Internet search should be disclosed to all applicants; Internet searches should be consistent for all applicants for a similar position; Applicants should never be required to provide screen names, Internet aliases, frequented networking sites, blogs visited or started, internet gaming sites, passwords; The search must be limited only to publicly available information;

19 References and Background Checks: Internet/Social Media Searches Best Practices The employer should only consider information that is related to a legitimate business purpose; The employer must not take into account any information regarding a protected classification under Title VII or other laws; The decision-making process should be kept separate from the information-gathering process; and Records of the search and findings should be maintained consistently with the institution record retention policy

20 References and Background Checks: Background Checks Must comply with the Fair Credit Reporting Act (FCRA) and applicable state law when conducting background checks. The FCRA is designed to protect privacy of consumer report information and to ensure that applicants are not denied jobs or promotions because of inaccurate or incomplete information.

21 References and Background Checks: Background Checks What is a Consumer Report? - Communication issued by a Consumer Reporting Agency that contains information about one or more of the following: - Credit worthiness, standing or capacity - Character - General reputation - Personal characteristics - Mode of living

22 References and Background Checks Background Checks Keep all Consumer Reports confidential and separate from other personnel documents Prior to background check, applicant must be notified in writing that the employer may obtain a consumer report and must authorize the employer to get consumer report Must certify to reporting agency that employer is FCRA compliant and will not misuse the information. Employer must abide by EEOC regulations. If employer makes decision not to hire employee based either in whole or in part because of the consumer report, the employer must notify the applicant.

23 References and Background Checks: Criminal Background Checks April 25, 2012, EEOC issued Enforcement Guidelines suggesting the elimination of background check policies that reject job applicants based solely on any criminal record. Arrest Records - EEOC Guidance reiterates that policies that exclude applicants on the basis of arrest records have a disparate impact on minorities. Conviction Records: - EEOC Guidance reiterates that policies that exclude applicants on the basis of arrest records have a disparate impact on minorities. - Employer must establish a job-related business necessity

24 References and Background Checks: Criminal Background Checks Best Practices Develop a narrowly tailored written policy and procedure for screening applicants and employees regarding criminal conduct; Train administrators, department chairs, and decisions makers regarding implementation of the policy; Identify essential job requirements and the actual circumstances under which the jobs are performed and determine specific offenses that may demonstrate unfitness to perform; Limit inquiries regarding criminal records to those that are job-related for the position in question and consistent with business necessity ; and Keep information about applicants and employees criminal records confidential. Only use it for the purpose for which it was intended.

25 Testing Applicants Only administer tests that are legitimately related to the job Do not administer tests that have an adverse impact on applicants from protected classes Accommodate individuals with disabilities when administering the test Accommodate religious beliefs when administering the test

26 Testing Applicants Perform drug tests uniformly and in the least invasive manner Use great care before considering the use of personality/honesty examinations Do not require pre-employment, pre-offer medical examinations

27 The Interview Process

28 The Interview Process: Best Practices DO have standardized interview process DO train all individuals at your institution who conduct interviews DO avoid asking both direct and indirect questions regarding an applicant's protected characteristics DO prepare interview questions in advance to maintain consistency throughout interviews

29 The Interview Process: Best Practices DO recognize that you will never see better from the interview than you do at the interview DO NOT ignore tardiness, lack of preparation, goals DO review job application and resume carefully DO more listening than talking DO take care that any notes you write in the interview will not be misinterpreted later DO clearly discuss tenure policies

30 The Interview Process: Best Practices DO inform applicants of the essential functions of the job and ask about their ability to perform them DO accommodate applicants with disabilities and applicants requiring religious accommodations

31 The Interview Process: Best Practices DO NOT imply an extra-contractual right to employment DO NOT ask an applicant about their union beliefs DO NOT discriminate against applicants based on their English fluency DO NOT ask about prior addiction to drugs/alcohol DO NOT ask about arrests

32 Selection of a Candidate, Offers of Employment or Letters of Appointment

33 Selection of a Candidate, Offers of Employment or Letters of Appointment Selecting the Candidate Review and assess needs of particular position Confirm no deviation from established selection criteria Do not utilize impermissible protected classifications in decision Select most suitable candidate for position Ensure that all records are maintained in accordance with institution record retention policy

34 Selection of a Candidate, Offers of Employment or Letters of Appointment Offers of Employment or Letters of Appointment Confirm the offer or appointment in writing Determine who has authorization to make an offer or appointment on behalf of the institution Notify unsuccessful candidates

35 Selection of a Candidate, Offers of Employment or Letters of Appointment Offers of Employment or Letters of Appointment Title of position being offered Start date Salary Title of employee s direct report An at-will provision or a clear statement of the contractual appointment such as the end date and reasons for which the contract may be terminated

36 Selection of a Candidate, Offers of Employment or Letters of Appointment Offers of Employment or Letters of Appointment State whether the position is tenure/non-tenure track State that employee will be required to follow applicable policies and procedures State the expiration date for the offer State that employee must formally accept the offer by signing, dating, and returning the letter.

37 Post-Offer, Pre-Employment Inquiries Disability related inquiries and medical examinations Ensure that all employees entering the same job category are subjected to the same inquiries and examination, regardless of a disability, and that all medical information obtained must be kept confidential. After making a conditional job offer, but before a person starts work, an employer may make unrestricted medical inquiries, but not refuse to hire an individual with a disability based on results of such inquiries, unless the reason for rejection is job-related and justified by business necessity (and if a reasonable accommodation was unavailable. After employment any medical examination or inquiry of an employee must be job-related and justified by business necessity.

38 After the applicant accepts the position, then what? Orientation Distribute and review employee handbook/manual Review performance expectations Discuss evaluation process Review policies prohibiting unlawful harassment Explain various benefits available to employees

39 SCENARIO I Characters: Professor Durable: Tenured member of the English department for 25 years The face of the department s renowned writing program; responsible for its significant growth and reputation Passed away suddenly near the end of the last academic year The Chair, Dr. Tenacious: Appointed last year; in her sixth year at the university; newly tenured The provost sought someone who could bridge the current divide between veteran and junior faculty Considered to be a rising star and scholar at the university Has many ideas regarding programs and growing the number of majors, but concerned about a pervasive we ve always done it this way approach

40 SCENARIO I (cont.) Professor Curmudgeon: Member of the department for 35 years Served as chair four times during his tenure Does not mind being viewed as difficult Touts his personal connections to the president and several board members Friend of Professor Durable; believes that he, as the most senior member of the department, should play a substantive role in identifying Professor Durable s successor in the writing program The Provost, Dr. Reticent: In her third year at the university Had a bit of a rocky start with the president regarding recruitment and retention strategies, but things seem to be on the right track now Worries about the future of the writing program without Professor Durable Prefers to conduct a thoughtful, national search and knows that the majority of the English department faculty members prefer this approach as well

41 SCENARIO I (cont.) The provost learns, through casual conversation with the president, that Professor Curmudgeon: Spoke with the president about what he believes should be the appropriate search process to replace Professor Durable Identified a friend, Dr. Dubious, who could be lured away from a competing writing program, to succeed Professor Durable Actually reached out to Dr. Dubious and actively explored with her the possibility of coming to the university Has been very persuasive with the president regarding the advantages of foregoing a traditional search so as to pursue a seasoned leader from another, similar program

42 SCENARIO I (cont.) What next steps can or should be taken by: The provost? The chair? The English department faculty members? Others? Discussion.

43 SCENARIO I (cont.) What if we also learn that: In consultation with the chair, the provost also discovers: There is increasing, internal unhappiness in the department a number of talented, junior members threaten to leave if something is not done to reign in Professor Curmudgeon s conduct. He is viewed as abusive to students and colleagues; students increasingly avoid his classes if they can. Professor Curmudgeon represented to Dr. Dubious that he had the full support of the president to explore a move to the university and you should be prepared to give notice of your resignation. This is not an opportunity to be missed. The nature of the appointment: associate professor; eligible for tenure in one year; salary would be third highest in the department. Discussion.

44 SCENARIO I (cont.) What if we also learn that: The president told the provost to do whatever needs to be done in order to ensure the preeminence of the writing program, including working with Professor Curmudgeon to interview Dr. Dubious, Professor Curmudgeon is aware, but has not disclosed to anyone, that his choice to succeed Professor Durable is involved in a legal action with her current university (tenure denial; claim of disability discrimination). Professor Curmudgeon believes that Dr. Dubious was treated very unfairly, but that a new start at the university will resolve all concerns. Discussion.

45 SCENARIO I (cont.) What if we also learn that: The provost, in an effort to further repair her relationship with the president, approved the targeted search, which shortened the normal search process. During the interview, Dr. Dubious looked promising and said all the right things. A deal was worked out to calm faculty fears. But, six months into the new academic year, we learn that: Part of Dr. Dubious CV is considered questionable The tenure denial litigation at her prior institution revealed allegations of unprofessional conduct in the department Current department members, especially the chair, are concerned by Dr. Dubious erratic behavior; s corroborate some of these concerns Some department members believe they were misled and that the deal with Dr. Dubious was for an interim appointment until a full search could be conducted How can this situation be resolved? How could it have been avoided?

46 SCENARIO II: Tenured Professor at Northeastern Illinois U. Has Bogus Ph.D. A professor with a Ph.D. from an unaccredited, now-defunct institution was given tenure by Northeastern Illinois University. The professor of justice studies received his Ph.D. from the California-based Pacific Western University, which was deemed a diploma mill. Those involved in hiring the professor at Northeastern Illinois in 2003 didn t know about the problems with his degree from Pacific Western, which had been under investigation for years even before the federal report was released, at the time he was offered the tenure-track job, sources at the school said. They said he wouldn t have been considered for the position if it had been known his Ph.D. wasn t from a legitimate program. Chicago Sun Times, May 10, What went wrong here and how did it go wrong?

47 SCENARIO III: Patty Perfect Applicant Patty s application contains the following information: Education Harvard Divinity School, , w/honors Yale, MA, School of Education, w/honors Thesis: Managing Students in Crisis Dartmouth, BA, Education, , cum laude Experience Intern, Harvard Divinity Project, Research Assistant, Yale: Studies in Risk Management in Higher Education Pool Monitor, , Lifeguard as federal work-study student *References available on request Does this application raise any red flags? What areas might be causes of concern?

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