EMPLOYMENT LAW AND HIRING Presented by: Edward Sponzilli, Esq. David Cassidy, Esq. Norris McLaughlin & Marcus, P.A. 721 Route 202-206 North Somerville, NJ 08876-1018 908-722-0700 0700 Dated: May 8, 2008
WHY ARE WE HERE TODAY? UCC is an equal opportunity employer (EEO). UCC is committed to diversity and complying with all federal, state and local laws. These principles apply to hiring and all other terms of employment. This presentation is designed to further these principles as relates to the hiring process.
HOW DOES EQUAL OPPORTUNITY IMPACT THE HIRING PROCESS? It requires that all persons have the right to apply for and to be evaluated for job opportunities without regard to any protected characteristic, such as: race, color, sex, national origin, religion, age, and mental or physical handicaps, etc.
WHAT IS EMPLOYMENT DISCRIMINATION? Employment discrimination occurs when an individual or group is treated differently than similar employees or job candidates -- or a policy has an unfair impact on a group of candidates or employees. Federal and state laws prohibit employment discrimination. These laws cover all personnel decisions i that t could affect equal employment opportunities for employees or applicants for employment.
TYPES OF DISCRIMINATION Disparate Treatment -- treating applicants or employees differently because of their membership in a protected class. The central issue is whether the employer's actions were motivated by discriminatory intent. Disparate Impact -- focuses on whether or not the employer has a policy or qualification that appears to apply to everyone the same but, in fact, has a significantly greater impact on members of a protected class.
FEDERAL EMPLOYMENT LAWS
EMPLOYMENT LAWS FEDERAL STATUTORY LAWS Title VII of The Civil Rights Acts of 1964 ( Title VII ), 42 U.S.C. SC 2000(e), et seq. Pregnancy Discrimination Act of 1978, 42 USC U.S.C. 2000e(k), et seq.
EMPLOYMENT LAWS FEDERAL STATUTORY LAWS (Cont d) Age Discrimination i i in Employment Act ( ADEA ), 29 U.S.C. 621, et seq. Americans With Disabilities Act ( ADA ) ), 42 U.S.C. 121101, et seq. Others...
UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (1994) USERRA An individual's past, present or future uniformed service duty or obligation must not be a negative factor in any hiring decision. Includes members of the Reserve and National Guard, and veterans.
STATE EMPLOYMENT LAWS
NEW JERSEY LAW AGAINST DISCRIMINATION, N.J.S.A. 10:5-1, 1, et seq. One of the broadest anti-discrimination laws in the United States. Provides for civil damages, including lost pay, emotional distress damages, punitive damages and attorneys fees. Provides for individual liability!
NEW JERSEY LAW AGAINST DISCRIMINATION, N.J.S.A. 10:5-1, 1, et seq. (Cont d ) LAD prohibits employers from discriminating in any employment practice. Applies to recruitment interviewing hiring Applies to recruitment, interviewing, hiring, promotions, discharge, compensation and the terms, conditions and privileges of employment.
NEW JERSEY LAW AGAINST DISCRIMINATION, N.J.S.A. 10:5-1, 1, et seq. (Cont d ) Applies to race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership status, affectional or sexual orientation, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status.
NEW JERSEY LAW AGAINST DISCRIMINATION, N.J.S.A. 10:5-1, 1, et seq. (Cont d) Governor Jon S. Corzine signed into law amendments to the LAD protecting individuals on the basis of civil union status, which took effect February 19, 2007. N.J.S.A. 37:1-28, et seq. Beginning June 17, 2007, the LAD also provides protections on the basis of gender identity or expression. N.J.S.A. 10:5-5(qq).
INDIVIDUAL LIABILITY
INDIVIDUAL LIABILITY NJSA N.J.S.A. 10:5-12a 12a prohibits unlawful employment practices or unlawful discrimination only by "an employer." An individual supervisor is not defined as an "employer" under the LAD. N.J.S.A 10:5-5e. N.J.S.A. 10:5-12e deems it unlawful "[f]or any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so."
INDIVIDUAL LIABILITY (cont d) To "aid" means "to assist, support or supplement the efforts of another," and to "abet" means "to encourage, counsel, incite or instigate." Baliko v. Stecker, 275 N.J. Super. 182, 191 (App. Div. 1994), certif. denied, 162 N.J. 199 (1999) (citing State v. Newell, 152 N.J. Super. 460, 469 (App. Div. 1977) and several civil cases)
AFFIRMATIVE ACTION VS. REVERSE DISCRIMINATION
AFFIRMATIVE ACTION PLAN KLAWITTER V. CITY OF TRENTON, 395 N.J. Super. 302 (App. Div. 2007) A white male police officer sued the defendant city claiming reverse race discrimination in violation of state law by being passed over for a promotion to sergeant in favor of a black officer. The Appellate Division affirmed plaintiff s reverse discrimination claim: The use of race as a plus factor is a useful and legitimate tool, when used as part of an overall affirmative action plan to rectify racial imbalances
AFFIRMATIVE ACTION PLAN We need not pass here upon the degree of formality and specificity that such a plan must contain It is apparent, however, that such a plan should contain as its premise a finding of racial imbalance and express the basis for that finding, set forth a goal for remediating the imbalance, and prescribe some form of standards by which the goal will be achieved Absent at least those basic ingredients, an employer would have the ability to invoke the purported "plan" in some employment decisions but not in others. This, of course, would constitute arbitrary action and would be inimical to the salutary purposes underlying affirmative action plans
AFFIRMATIVE ACTION PLAN We hold that race can be considered in an employment decision only pursuant to and in accordance with an established affirmative action plan. Without such a plan in place, an employer would be in violation An affirmative action plan serves to assure that the employer s motive in considering race was to correct a well founded underrepresentation of minorities and that no unlawful purpose was at issue.
AFFIRMATIVE ACTION PLAN The existence of an affirmative action plan allows race to be used as a legitimate t factor for an employment decision.
RECRUITING AND OUTREACH ICLE Affirmative Action In Higher Education And Employment, (2007) pp-21-22: 22: Position descriptions: Many position descriptions are drafted in ways that do not reflect all of the actual needs or interests relative to a particular position, thus discouraging quality applicants who might otherwise apply. The wording of a position description can shape the applicant pool to a great extent. Some ideas to consider include the following:
RECRUITING AND OUTREACH (cont d) Tie the description closely l to the actual skills needed for the position, and then be consistent t in applying these criteria throughout the process. See, e.g. Medcalf v. Trustees of Univ. of Pennsylvania, 71 Fed.Appx. 924, 2003 WL 21843021 (3d Cir. 2003)
RECRUITING AND OUTREACH (cont d) Think carefully about future needs related to the position and department. In many searches, the immediacy of current issues (e.g., the need to offer a particular course in a given semester) tends to overshadow longer-term needs and interests. In other cases, committees tend to compare candidates to the previous occupant of a position rather than to think prospectively about how a position or department might change or evolve over time.
RECRUITING AND OUTREACH (cont d) Consider non-race-based criteria such as the ability to work with diverse students or colleagues, or experience with a variety of teaching methods and curricular perspectives. p Studies suggest that many women and faculty of color use a variety of pedagogical techniques, and this kind of flexibility in pedagogy can be especially valuable to reflect and relate to the varying learning styles and increasingly diverse student bodies. See, e.g., Does Diversity Make a Difference? Three Research Studies on Diversity in College Classrooms, American Council on Education & American Association of University Professors (2000).
RECRUITING AND OUTREACH (cont d) Think about possibilities for interdisciplinary/interdepartmental work, which could broaden the potential applicant pool. Don t delineate narrow or overly stringent criteria (e.g., requiring a certain number of years of experience) that are not necessary for the position, See, e.g., Sadki v. SUNY College at Brockport, 310 F. Supp.2d 506 (W.D.N.Y 2004)
UCC s Policies
UCC S EQUAL EMPLOYMENT OPPORTUNITY POLICY STATEMENT Union County College is committed to equal employment opportunity and to maintaining a work environment for faculty and staff which is free of discrimination on the basis of race, sex, color, age, national origin, disability, sexual orientation, religion, or marital status. Anyone who violates this policy may be subject to disciplinary action, including termination. Applies to the hiring process too.
AMERICANS WITH DISABILITIES ACT OF 1990 POLICY STATEMENT Union County College does not discriminate against qualified individuals with disabilities. The College provides reasonable accommodations, as required by law, to qualified applicants and employees. Employment or promotion opportunities will not be denied to an employee because of the need to make reasonable accommodations or modifications.
UNION COUNTY COLLEGE'S AFFIRMATIVE ACTION OFFICE UCC s Affirmative Action Office works with the administration to ensure compliance with all EEO laws and other employment related legislation. The Affirmative Action Office is also responsible for investigating employee complaints of discrimination and harassment.
PRE-INTERVIEW PROCESS
HOW DO THESE LAWS APPLY TO THE HIRING PROCESS? Laws apply to recruitment, interviewing, selection and offer of employment Advertising and job postings Interviewing Selection
ADVERTISEMENTS AND JOB POSTINGS Define the job, qualifications and selection criteria in a nondiscriminatory manner. Advertisement and posting should be consistent with the position that is sought. The interview and selection process should be The interview and selection process should be consistent with the advertisement or posting.
ADVERTISING RESTRICTIONS Federal and NJ law prohibits advertising for Federal and NJ law prohibits advertising for employment, on the basis of protected characteristics, such as: race, sex, color, religion, national origin, age, marital status, familial status, disability.
TITLE VII CIVIL RIGHTS Title VII says it shall be an unlawful employment practice for an employer... to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer... indicating any preference, limitation, specification which discriminates based on: race, color, religion, sex, or national origin, except... a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.
EXAMPLE Wanted: attractive young female for waitress Wanted: attractive, young female for waitress position. This violates Title VII because the ad specifies the sex and age of the desired employee and uses sex-referential language (waitress).
GOOGLE/MYSPACE/FACEBOOK/ RESEARCH Good idea maybe? The Good public information about an applicant that may provide insight into the applicant.
GOOGLE/MYSPACE/FACEBOOK RESEARCH (Cont d) CollegeGrad.com, found that 47% of college grad job seekers who use social networking sites such as MySpace and Facebook have either already changed or plan to change the content of their pages as a result of their job search. The survey was conducted nationally using an online poll placed on the CollegeGrad.com home page during June 2006. The results are based on more than 1,600 respondents.
GOOGLE/MYSPACE/FACEBOOK RESEARCH (Cont d) The Bad prohibited information; false information. Curiosity killed the cat? Examples religious affiliation; disabilities; sexual orientation revealed.
GOOGLE/MYSPACE/FACEBOOK RESEARCH (Cont d) Anyone can post to a website using someone else's name There could be others with the same name Maiden name/name changes Privacy issues?
GOOGLE/MYSPACE/FACEBOOK RESEARCH (Cont d) If you do it, follow these rules: Employment laws apply to the information gathered: disregard protected characteristics in your decision-making process Be consistent t Same applies to blogs and information therein
GUIDELINES FOR RECRUITMENT Define the position and the qualifications. Demonstrate a job-related necessity for the qualifications and asking any related question. Is this information really needed in order to judge the applicant s qualifications, level of skills and overall competence for the job in question?
THE INTERVIEW PROCESS
LAWFUL & EFFECTIVE SCREENING METHODS Avoid questions which directly or indirectly inquire into protected status, unless justified by business necessity Race age/date graduated d high h school marital status/are you the primary breadwinner Etc...
LAWFUL & EFFECTIVE SCREENING METHODS (cont d) Race and color discrimination There are no acceptable inquiries about a person s race or color Direct inquiries You cannot ask a person what race they are Indirect inquiries You cannot require a photograph with an application There should not be notations concerning an g applicant s race or ethnicity on personnel forms
GUIDELINES ON INTERVIEWING Gender - Pregnancy There are NO acceptable questions regarding a persons gender OR pregnancy. Marital Status/Name Changes/Number of Children These kind of questions may be construed as These kind of questions may be construed as discriminating against women.
GUIDELINES ON INTERVIEWING (cont d) Employers cannot discriminate against applicants on the basis of their citizenship or national origin. Avoid questions designed to elicit information Avoid questions designed to elicit information about an applicant s country of origin or citizenship status.
GUIDELINES ON INTERVIEWING (cont d) National Origin and Citizenship You may NOT ask where an applicant was born. You may NOT ask an applicant where their parents were born. Language skills only ask if it s a requirement of the job. Employers may ask applicants about their ability to provide evidence that they are eligible to work in the United States.
GUIDELINES ON INTERVIEWING (cont'd) Age You should NOT ask questions which infer any age specifications or limitations Religion i.e., recent graduates when did you graduate? Driver s license You CANNOT ask about a person s religion or religious affiliations. Organization or club memberships
SOME NOT-SO SO-OBVIOUS OBVIOUS EXAMPLES OF DISCRIMINATION
UNLAWFUL STEREOTYPING DURING HIRING PROCESS CAREGIVER RESPONSIBILITIES An example: At the interview, Bob, the manager of the department, noticed Patricia s wedding ring and asked, How many kids do you have? The applicant stated she had no children yet but that she planned to once she and her husband had gotten their careers underway. Bob explained that the duties of a marketing assistant are very demanding, and rather than discuss Patricia s qualifications, he asked how she would balance work and childcare responsibilities when the need arose.
UNLAWFUL STEREOTYPING DURING HIRING PROCESS CAREGIVER RESPONSIBILITIES (Cont d) Bob later told his secretary that he was concerned about hiring a young married woman he thought she might have kids, and he didn t believe that being a mother was compatible with a fast-paced business environment. A week after the interview, Patricia was notified that she was not hired.
UNLAWFUL STEREOTYPING DURING HIRING PROCESS CAREGIVER RESPONSIBILITIES (Cont d) Is this unlawful? The employer said that it reposted the position because it was not satisfied with the experience level of the applicants in the first round. In reality, the applicant easily met the requirements for the position and had as much experience as some other individuals recently hired as marketing assistants. Under these circumstances, the employer rejected Patricia from the first round of hiring because of sex- based stereotype t in violation of Title VII.
UNLAWFUL STEREOTYPING -- ASSOCIATION WITH AN INDIVIDUAL WITH A DISABILITY An employer cannot refuse to hire someone based upon the applicant s association with someone with a disability or caregiver responsibilities of someone with a disability. Under these circumstances, the employer has violated the ADA by refusing to hire an individual because of his or her association with an individual with a disability
DISABILITIES Disability You may not make a medical inquiry prior to an offer of employment. You may not ask whether or not the applicant has a particular disability medical inquiry. You may ask whether or not the applicant can perform the duties of the job in question.
DISABILITIES May an employer ask whether an applicant can meet the employer's attendance requirements?
DISABILITIES Yes. An employer may state its attendance requirements and ask whether an applicant can meet them. An employer also may ask about an applicant's prior attendance record (for example, how many days the applicant was absent from his/her last job). But, an employer may not ask how many days an applicant was sick, because these questions relate directly to the severity of an individual's impairments.
DISABILITIES May an employer ask applicants whether they will need a reasonable accommodation to perform the functions of the job? How about whether a reasonable accommodation is required for the hiring process?
DISABILITIES In general, an employer may not ask questions on an application or in an interview about whether an applicant will need a reasonable accommodation for a job. An employer may tell applicants what the hiring process involves (for example, an interview, timed written test, or job demonstration), and may ask applicants whether they will need a reasonable accommodation for this process.
WHEN INTERVIEWING PERSONS WITH DISABILITIES Don t Don t touch or talk to a seeing-eyed dog. Don t ask about a person s s disability history. Don t ask about prior workers compensation claims. Don t ask how the person became disabled. Don t ask how a person is going to get to work.
OTHER CHARACTERISTICS PROTECTED FROM DISCRIMINATION Financial Status You cannot ask whether a person has ever filed for bankruptcy. Sexual Preference There are no permissible questions regarding a person s sexual preferences. Marital Status You may not ask an applicant what their marital status is.
OTHER CHARACTERISTICS PROTECTED FROM DISCRIMINATION (Cont d) Union Membership Any questions regarding union membership are prohibited by the National Labor Relations Act. Height and/or Weight Restrictions Unless the restrictions are related to specific job requirements, they should not be asked about.
SELECTION GUIDELINES Disparate treatment analysis Consistency as to criteria: advertisement, posting, job description, interview Do incumbents possess requisite qualifications? Even-handed application without regard to protected status Objective vs. Subjective
NEW JERSEY FORFEITURE LAW New Jersey Forfeiture of Public Office Act, N.J.S.A. 2C:51-2
ARREST, CONVICTIONS AND RESUME FRAUD You cannot ask if a person has ever been arrested You can ask, Have you ever e been convicted of a crime? If so, when, where and what was the disposition of the case? If a person answers, YES, you must If a person answers, YES, you must then apply the Business Necessity Test
2C:51-2. 2. FORFEITURE OF PUBLIC OFFICE, POSITION, OR EMPLOYMENT A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office, position or employment if: (1) He is convicted under the laws of this State of an offense involving dishonesty or of a crime of the third degree or above or under the laws of another state or of the United States of an offense or a crime which, if committed in this State, would be such an offense or crime;
2C:51-2. 2. FORFEITURE OF PUBLIC OFFICE, POSITION, OR EMPLOYMENT (Cont d) (2) He is convicted of an offense involving or touching such office, position or employment; or (3) The Constitution so provides. As used in this subsection, "involving or touching such office, position or employment" means an offense related directly to the person's performance in, or circumstances flowing from, the specific position.
Charles Cedeno v. Montclair State University, it et als. 163 N.J. 473 (2000) Charles Cedeno applied for the position of Director of Purchasing at Montclair State University (Montclair). The job application asked whether he had any criminal convictions, which Cedeno falsely answered in the negative. Cedeno was hired by Montclair to fill the position. Cedeno was discharged 10 years later.
Charles Cedeno v. Montclair State University, it et als. (cont d) The New Jersey Supreme Court addressed whether a person who is statutorily disqualified from obtaining public employment as a result of a criminal conviction may maintain an action for an alleged wrongful discharge, in violation of the Conscientious Employee Protection Act (CEPA) and the Law Against Discrimination (LAD). The Court held:
Charles Cedeno v. Montclair State University, et als. (cont d) The employee could not pursue claims as he was precluded from employment originally under the Forfeiture Law. Left open the possibility that a disqualified individual may be able to allege facts that would constitute aggravated harm or egregious discriminatory conduct sufficient to survive a motion for summary judgment.
RESUME FRAUD & AFTER ACQUIRED EVIDENCE DOCTRINE An employee is entitled to relief even if the employer later discovers evidence of wrongdoing that would have led to the employee's termination. McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879 (1995). Remedies of frontpay, reinstatement and backpay limited to the extent necessary to protect the employer's legitimate interest in severing the employment relationship. Applies equally to Title VII and ADA.
PRACTICAL TIPS
HIRING STEPS Define the job Recruit applicants from the broadest pool possible Screen the applications and/or resumes Interview the likely candidates Test candidates, if necessary, for the job Check references and pertinent background information Evaluate candidates Extend an offer of employment Remember that interviewing is only one of the steps involved in the hiring process
WHAT IF THE APPLICANT BRINGS UP A TOPIC SUCH AS A REFERENCE TO HIS OR HER AGE, RELIGION OR DISABILITY? If an applicant raises one of these topics, you should not ask questions that may elicit further information. As a general rule focus your interview on describing the As a general rule, focus your interview on describing the responsibilities, duties and performance expectations of the job.
PRACTICAL TIPS FOR CONDUCTING EMPLOYMENT INTERVIEWS Review and update job descriptions - do they accurately reflect the duties for the position. Be prepared for the interview and know what questions you will ask all applicants. Be uniform in your approach. Stay focused; listen carefully.
PRACTICAL TIPS FOR CONDUCTING EMPLOYMENT INTERVIEWS (cont d) Evaluate an applicant s resume in relation to the requirements of the position. Promote discussion about the position, including specifics about the essential job functions and your expectations for performance and other goals Make notes about the interview without being derogatory or discriminatory. Avoid subjective analysis of the applicant if possible.
DOCUMENTATION AND RETENTION Maintain Accurate Documentation Application and associated forms Interview forms Job descriptions Confidentiality/maintenance of separate files
YOU RE HIRED Compliance with Requirements of the U.S. Citizenship and Immigration Services
COMPLIANCE WITH U.S. CITIZENSHIP AND IMMIGRATION SERVICES (cont d) For all new employees hired after 11/6/86, an I-9 form must be completed The I-9 was changed effective 6/5/07. Its purpose was to reduce the number of documents permitted to prove employment eligibility (to reduce fraud)
COMPLIANCE WITH U.S. CITIZENSHIP AND IMMIGRATION SERVICES (cont d) An employer can verify eligibility ibilit also (in addition) with the Department of Homeland Security
COMPLIANCE WITH U.S. CITIZENSHIP AND IMMIGRATION SERVICES (cont d) 1 of the I-9 is to be completed by the employee on or before the first day of employment 2 of the I-9 for the employer should be completed within 3 days of hire The employer may not tell the employee which documents to use to establish identity and work eligibility
COMPLIANCE WITH U.S. CITIZENSHIP AND IMMIGRATION SERVICES (cont d) However, the employer may direct the employee to the list on the reverse side of the I-9 form List A has been reduced to delete: Certificate of U.S. Citizenship Certificate of Naturalization Alien Representation Receipts card Unexpired Reentry Permit Unexpired Refugee Travel Document
COMPLIANCE WITH U.S. CITIZENSHIP AND IMMIGRATION SERVICES (cont d) The employer need only use good faith to verify the identity and eligibility for U.S. employment But if the employer rejects an employee But, if the employer rejects an employee due to inadequate document verification, and the documentation turns out to be valid and adequate, the employer may be subject to liability for discrimination