HRMN 408 Assignment 1
The Hiring Process
• Job Descriptions
• Advertising the Opening
• Applications
• Interviews
• Background Checks and Consumer Reports
• Pre-Employment Testing
• Employment Offers
• Medical Exams
• New-Employee Procedures
• Fraud and Misrepresentation in Hiring
• Interference with Contractual Relations
• Negligent Employment
CHAPTER 2
C o p y r i g h t 2 0 1 7 . S o c i e t y F o r H u m a n R e s o u r c e M a n a g e m e n t .
A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .
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Book: The SHRM Essential Guide to Employment Law : A Handbook for HR Professionals, Managers, Businesses, and Organizations. Author: Charles Fleischer Date: 2017
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The SHRM Essential Guide to Employment Law24
Employers and employees have numerous interactions during the employment relationship. While any of these interactions can give rise to liability, those involving hiring (discussed here), evaluating (discussed in Chapter 3), and terminating (see Chapter 4) stand out as particularly critical.
The hiring process has one purpose: to exchange enough infor- mation so that the parties can make an informed decision about whether to enter into an employment relationship. Good hiring practice involves the collection of appropriate information untaint- ed by information that should not be the basis for a hiring decision. The hiring procedure usually involves the steps discussed below.
JOB DESCRIPTIONS To focus on job qualifications, the employer should first prepare a clear, written description of the job being offered. The description should include at least the following:
• essential functions of the job—the critical functions that go to the heart of the job and that the person holding the job must, unquestionably, be able to do
• less critical functions that the employee may be called on to perform from time to time or that could be done by others if necessary
• special skills required, such as ability to operate complex equipment
• special education, licenses, or certificates required • title or position of the person to whom the employee reports • number and classification of persons who report to the employee • whether the employee is exempt or nonexempt under the Fair Labor Standards Act
• date the description was prepared or most recently revised
The job description should not include any employee charac- teristics that the employer is prohibited from considering, such as age, gender, and race.
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The Hiring Process 25
The job description should be prepared before the job is advertised and before any candidates are considered. That way, the employer will have a much easier time defending its deci- sion to reject a candidate on grounds that he or she could not perform the essential functions of the job despite reasonable accommodation.
ADVERTISING THE OPENING Any want ads the employer runs or notices it posts should describe the job being offered, not the person the employer thinks it is looking for. Expressions such as recent graduate, energetic person, or digital native could provide evidence of age discrimination if the position is filled by a younger candidate after an older candi- date has been turned down. Expressions that indicate a gender preference, such as waitress, should also be avoided. (Discrimina- tion is discussed in detail in Chapters 14 through 17.)
Use of only a single method for recruiting unduly restricts the candidate pool and discourages workplace diversity. Word-of- mouth recruiting, for example, has been attacked by the Equal Employment Opportunity Commission (EEOC) as potential- ly discriminatory: if your current workforce consists mostly of white, middle-age males, word-of-mouth recruiting is likely to produce candidates who are mostly white, middle-aged males.
Internet Recruiting Advertising job openings via the Internet is a convenient, relative- ly inexpensive way to attract resumes—and that is the problem. An employer can be overwhelmed with the number of responses and lack sufficient staff time to screen them effectively. Screen- ing software, while effective, may inadvertently discriminate if the wrong keywords are used to do the screening. Employers that limit their recruitment to this medium should also be alert to possible disability discrimination claims if their website lacks accessibility.
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The SHRM Essential Guide to Employment Law26
QUICK TIP Some employers report that electronic applications, particularly those with attachments
purporting to be resumes or supporting documents, contain ransomware or other
destructive code.
APPLICATIONS A written application form should be developed for initial screening purposes. The application form should obviously not ask for infor- mation that the employer is prohibited from considering as part of the hiring process.
Some seemingly innocuous inquiries can also cause trouble. For example, the applicant should not be asked to attach a photograph. Age or birthdate questions should be saved until after the appli- cant has been hired (although for child labor purposes, the employer should ask whether the applicant is at least 18). Similarly, immigra- tion status questions should be saved for later, and the application should be limited to the question, “Are you legally eligible to work in the United States?” Even a question about whom to contact in an emergency should be avoided in the initial application, since it could reveal marital status or family information.
In the past, application forms routinely asked about a candidate’s criminal history. The EEOC has weighed in on this practice, assert- ing that basing employment decisions on such information could discriminate against groups that, statistically, suffer higher convic- tion rates than the general population.
According to the EEOC, arrest records alone should never be considered, because an arrest does not establish guilt. And instead of a blanket policy excluding every applicant who has a conviction record, the employer should consider, on a case-by-case basis, the following:
• the nature and gravity of the criminal offense • the time that has passed since the offense and/or completion of sentence
• the nature of the job
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The Hiring Process 27
In short, the employer must be able to show that its criminal his- tory policy accurately distinguishes between applicants who pose an unacceptable risk and those who do not.
Complicating the issue, states and even counties and cities have begun adopting ban-the-box rules that prohibit or restrict employ- ers from asking about a candidate’s criminal history. In one local jurisdiction, for example, employers can ask about criminal history, but only after the initial interview. These social policies may be well intended, but to the extent they limit an employer’s ability to obtain information relevant to the hiring decision, they could expose the employer, fellow employees, and the public generally to avoidable risks.
Further complicating matters, a few jurisdictions have adopted or are considering the adoption of laws prohibiting employers from asking about compensation history (on the theory that this perpet- uates pay disparities suffered by women and minorities) and from discriminating against persons who are currently unemployed.
QUICK TIP When hiring a former U.S. government employee, it is important to know whether the
employee is restricted in the type of work he or she may engage in. Either by law or by
executive order, many former government employees are prohibited for specific time
periods, and in some cases forever, from working on matters that would create a conflict
of interest or the appearance of a conflict.
INTERVIEWS Interviews should be conducted by experienced personnel using a standard written interview form. The interview form should be limited to questions or topics directly relevant to job performance, and the interviewer should stick to the form, noting the applicant’s responses. By having and following a standard written form, the employer can more easily show that it did not inquire about any prohibited matters and that no particular applicant was singled out for special questioning.
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The SHRM Essential Guide to Employment Law28
It is difficult to get a feel for an applicant’s personality and com- munications skills if all that is asked are yes-or-no questions, so inter- viewers naturally like to ask open-ended questions, such as “Why do you want to work here?” or “Tell me what you like and don’t like about your current job.” There are risks to open-ended questions, however, particularly when they are not strictly job-related, because they may elicit personal information that can later form the basis of a discrimination claim.
Another common pitfall in the hiring process is family status. Suppose an interviewer asks, “Do you have any family responsibili- ties that could keep you from getting to the office?” The applicant responds, “I’m a single parent and my son has special needs, but I have day care arrangements that work pretty well.” Later, when checking with the applicant’s previous employer, the interviewer learns of a tardiness problem. If the applicant is rejected, the employ- er is open to charges of violating the Americans with Disabilities Act (ADA) or other nondiscrimination laws.
An employer may not ask, “Are you disabled?” or “Do you have any medical conditions that could interfere with your performance?” However, an employer may inquire, “Can you do this job?”—pro- vided the question is asked of every applicant and not just those who may appear to have disabilities.
BACKGROUND CHECKS AND CONSUMER REPORTS Once you have a short list of candidates, or have tentatively chosen a single candidate, it is time for background checking. This could include, as appropriate, calls to references and previous employers, ordering a consumer or credit report (see below), ordering a crimi- nal convictions check (if warranted by the nature of the job and per- mitted by state law), and obtaining a copy of the candidate’s driving record. It may even include a drug test. Background checking will not include a lie detector test, and until you have actually made a conditional offer to the candidate, it will not include a medical exam. (Chapter 17 discusses medical examinations.)
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The Hiring Process 29
Federal law regulates the use by employers of credit and investi- gative reports prepared by consumer reporting agencies. The feder- al Fair Credit Reporting Act (FCRA) defines a consumer reporting agency (CRA) as a person or entity that, for a fee, assembles or evaluates credit information or other information on consumers (defined to include employees and candidates for employment) for the purpose of regularly furnishing consumer reports to third par- ties (such as employers). Even an online search engine that assem- bles personal data from public sources may qualify as a CRA.
In general, employers may obtain consumer reports from CRAs, including investigative reports, to assess character and general reputation for purposes of evaluating, promoting, reassigning, or retaining an applicant or employee. The law places limits on how far back the credit reporting agency may search for various types of information, but those limits do not apply when highly compen- sated positions are being filled.
When requesting a consumer report, the employer must dis- close to the applicant or employee in writing that it is request- ing such a report and must obtain the applicant’s or employee’s written authorization to obtain the report. The disclosure and authorization must be a separate, stand-alone document and not be embedded in the employment application or some other form. The applicant may in turn make a written request to be informed of the full nature and scope of the report being requested, and the employer must then furnish that information.
If the employer intends to make an adverse employment deci- sion based wholly or partly on the consumer report, the employer must first inform the applicant of this intention. In addition, the employer must supply the applicant or employee with the name and address of the CRA that made the report, a copy of the report, and a statement explaining the applicant’s rights under federal law to challenge the accuracy of the report. The federal Consum- er Financial Protection Bureau, which enforces the FCRA, has developed a form statement of employee rights under federal law
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The SHRM Essential Guide to Employment Law30
that satisfies the employer’s FCRA obligations, available on the bureau’s website.
CASE STUDY: EXTRANEOUS TEXT IN FCRA DISCLOSURES An employer obtained a consumer report on its applicants, using a disclosure form that also contained a waiver of liability in connection with the use and dissemination of any information contained in the consumer report. In a 2017 case, the U.S. Court of Appeals for the 9th Circuit (headquartered in San Francisco) held that inclusion of the liability waiver violated the FCRA requirement that the disclosure be a stand-alone document. The court also held that, since the stand-alone requirement is so clear, the employer’s conduct amounted to a willful violation of the law.
Pursuant to a 2003 amendment to the FCRA known as the Fair and Accurate Credit Transactions Act (FACT Act), the Federal Trade Commission (FTC) adopted regulations governing the dis- posal of consumer information. The FTC’s Disposal Rule requires employers and others that have such information to properly dis- pose of it when no longer needed by taking reasonable measures to protect against unauthorized access or use. Examples of reasonable measures include burning, pulverizing, or shredding papers contain- ing consumer information and implementing and enforcing policies for erasure of electronic media containing consumer information.
ALERT! Some states flatly prohibit employers, with limited exceptions, from obtaining an appli-
cant’s or employee’s credit information for employment purposes, even though the
employer has fully complied with the FCRA. Other states permit the obtaining of credit
information, but they regulate the process.
Should employers search social media as part of a background investigation? There are dangers in doing so, since so much personal
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The Hiring Process 31
information—such as family status, recreational activities, and reli- gious affiliations—is posted online. One solution is to have someone who is not the decision-maker screen social media content, delete irrelevant personal information, and report only job-relevant data to the decision-maker. (Social media policies are discussed in more detail in Chapter 18.) Employers that decide to include a social media search in their background investigations should develop a standard list of media to search, so that all applicants are treated similarly.
Some states prohibit employers from requesting applicants or cur- rent employees to provide social media passwords. And of course, it is illegal for an employer to hack another’s social media account.
PRE-EMPLOYMENT TESTING Title VII of the federal Civil Rights Act makes it unlawful for an employer, when selecting candidates for employment, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or national origin. Even short of such blatant dis- crimination as using different cutoff scores, tests that have the unintended effect of excluding certain groups could result in disparate impact discrimination. For enforcement purposes, the EEOC has adopted a four-fifths rule—if a particular test (or any other selection procedure, for that matter) results in a selection rate for any race, sex, or ethnic group that is less than four-fifths (80 percent) of the rate for the group with the highest selec- tion rate, the procedure will generally be regarded as evidence of adverse discriminatory impact.
Tests also need to be validated—that is, shown by statistical or other evidence to be good predictors of job performance. The EEOC has adopted detailed regulations on validation requirements, which go beyond the scope of this book. The regulations also require employers to keep records on the impact of their testing procedures, classified by gender, race, and ethnic group.
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The SHRM Essential Guide to Employment Law32
EMPLOYMENT OFFERS When you have finally identified a single candidate, the next step is to make an offer. A written offer is recommended to avoid any misunderstandings and reduce the possibility of disputes down the road. For at-will employees, the offer will usually be in the form of a simple letter. Figure 2.1 is an example of a written offer.
FIGURE 2.1: AT-WILL OFFER LETTER
Dear [candidate name]:
We are pleased to offer you the full-time exempt position of [job title] at a starting salary of $[amount] per year, beginning [date]. This offer is subject to your furnishing sufficient evidence that you are eligible to work in the United States [and to completion of a background check, drug test, and medical exam at the company’s expense].
Vacation and sick leave policies, benefit plans, and other company policies and procedures are explained in our employee handbook, a copy of which will be provided on your start date. You are expected to read and be familiar with the employee handbook and to sign a receipt for the handbook. [As part of the hiring process you will be required to sign [company name]’s standard forms of Noncompetition Agreement and Arbitration Agreement, copies of which have previously been provided to you.]
This letter is not intended to be a contract of employment or a promise of employment for a specific period of time. You will be an at-will employee of [company name], meaning that either you or [company name] can terminate the employment relationship at any time for any reason, with or without cause, and meaning that [company name] can change the terms and conditions of your employment at any time.
If you accept this offer, please sign and return the enclosed copy of this letter no later than [date].
You should report to [employee name] at [time] on your first day of work to complete the hiring process.
All previous discussions and negotiations are merged in and superseded by this letter.
Very truly yours, [company name]
By ______________________________________________________________________ [employee name], [title] I accept this offer of employment:
Signature: ________________________________________ Date: _________________
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The Hiring Process 33
MEDICAL EXAMS Medical exams (but not tests for illegal drugs) are governed by the ADA, discussed in Chapter 17. Before actually offering employ- ment, an employer may never require an applicant to undergo a medical exam. When the employer actually offers employment, the offer may be conditioned on the results of a medical exam if the following apply:
• all entering employees in the job category are subject to examination
• the exam requirement can be shown to be job-related and consis- tent with business necessity
• the resulting medical information is separately maintained and treated as confidential
• the results are not used to discriminate against persons with disabilities
If the offer is subject to any conditions in addition to the medical exam, the medical exam will violate the ADA.
NEW-EMPLOYEE PROCEDURES The employer should take the following steps when the employee actually starts work:
• Obtain evidence of the employee’s eligibility to work in the U.S. and complete Form I-9 (discussed in Chapter 21).
• Check the employee’s work eligibility status using E-Verify (if the employer participates in the E-Verify system).
• Have the employee complete Internal Revenue Service Form W-4 and the appropriate state counterpart (see Chapter 7).
• Obtain any additional personal information not given on the application, such as birthdate and emergency contact.
• Collect information as to the employee’s race, sex, and national origin if required to file an EEO-1 report (see Chapter 14).
• Give the employee copies of the employee handbook and other applicable work rules and policies, and obtain signed receipts.
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The SHRM Essential Guide to Employment Law34
• Give the employee a copy of his or her job description and obtain a signed receipt.
• Have the employee sign an arbitration agreement, if appropriate (see Chapter 1).
• Have the employee sign a confidentiality, noncompete, and non- solicitation agreement, if appropriate (discussed in Chapter 19).
• Have the employee enroll in any benefit plans for which he or she is then eligible.
• Notify the appropriate state agency of the new hire within 20 days after the employee begins employment.
National Directory of New Hires Database Federal law requires each state to establish a National Directory of New Hires database that is then shared with other states to track persons who have child-support obligations. The information is also used to detect fraud or abuse in welfare and unemployment programs. The states, in turn, have passed laws to establish the directory and to require in-state employers to report new hires within 20 days after hiring. The one-page form can be mailed or faxed. Forms can be obtained, and in some cases completed, online.
Multistate employers (employers with employees in more than one state) have two reporting options: they may report each newly hired employee to the state where the employee is working, fol- lowing the new-hire reporting regulations of that particular state, or they may select one state where they have employees work- ing and report all new hires electronically to that state. Employ- ers must choose between the two options; they cannot use both. Employers that choose the second option must register with the U.S. Department of Health and Human Services (HHS) as a mul- tistate employer.
More information on new-hire reporting and forms for regis- tering as a multistate employer are available online at the Office of Child Support Enforcement of the HHS.
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The Hiring Process 35
Probationary Periods Many employers consider the first 90 or 180 days of employment as a probationary period, during which a new employee is under close scrutiny and can be summarily discharged if not performing to expectation. Such a policy may make sense in a union setting, in which employees enjoy job protections after expiration of the probationary period, but the policy makes little sense in an at-will employment situation. If an employee is at will, what is his or her status after successfully completing probation? It is still at will, as far as the employer is concerned, but the employee might reason- ably expect that he or she can now be fired only for cause. In a true at-will situation, everyone is always on probation!
FRAUD AND MISREPRESENTATION IN HIRING
Resume Fraud Prospective employees sometimes lie on their job applications. When the position being applied for involves risk to the public, the employer should take reasonable steps to verify the infor- mation. Even when no obvious risk is involved, the employer may wish to verify education or past experience that bears on the applicant’s qualifications for the job.
While ferreting out these lies is becoming increasingly burden- some, employers can take steps to ensure they obtain an accurate picture of the candidate:
• Check each reference. • Ask each reference to furnish the name of another person who knows the candidate and check with that person as well.
• Require the candidate to complete a standard written employ- ment application and check the application against the resume for inconsistencies.
• If the candidate claims knowledge or experience in a particular technical field, have one of the company’s technicians partici- pate in interviewing the candidate.
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The SHRM Essential Guide to Employment Law36
• Require candidates to present original documentation in support of resume claims (for example, degrees, certifications, drivers’ licenses).
• Obtain official transcripts directly from schools the candidate attended.
• Obtain driving records from state motor vehicle authorities. • Search the Internet for publicly available information (but see the discussion above and in Chapter 18 about social media).
• Contract with companies to obtain background investigations, criminal conviction checks, and credit checks (but be sure to comply with FCRA requirements, discussed above).
• Hire candidates provided by employment agencies that prescreen their referrals.
Suppose a falsified resume slips past the employer and is not dis- covered until months or years down the road. What rights and rem- edies does the employer then have?
At-will employees may, of course, be discharged for any reason (except an illegal reason) or for no reason. As for those employees with employment contracts, if the resume contains a false statement about a material matter (that is, about a matter that a reasonable person would find significant), and the employer actually relied on the statement in offering employment, then the employment contract is the product of the employee’s fraud. The employer may avoid the contract and discharge the employee so long as the employer acts promptly after discovering the fraud. However, if the false statement is an obvious typographical error (say, inversion of two digits in the date for previous employment), it is trivial, or it is so inherently improba- ble that the employer could not reasonably have relied on it, then the contract of employment remains enforceable.
QUICK TIP For both contract and at-will positions, it is a good idea to include in the employment
application a certification by the applicant that the application is truthful and that all
supporting items such as transcripts and reference letters are genuine and unaltered.
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The Hiring Process 37
Employer Misrepresentations Suppose an employer makes an offer of at-will employment and, in the process, makes certain statements to the prospective employee about, for example, the nature of the job or working conditions. The applicant relies on those statements, accepts the job, turns down other offers, and begins work. Then, for the first time, the employee learns that the employer’s prehiring statements were untrue and that actual job conditions are much less favorable than as represented.
It could be argued that the employee has no basis to complain about the employer’s false prehiring statements, since in an at-will relationship the employer has the absolute right to change work- ing conditions at any time and to fire an employee whenever the employer feels like doing so. However, several courts have ruled that an at-will employee who, in reliance on an employer’s false statements, resigns from another job, turns down other offers, or incurs relocation expenses, can sue the employer for fraud, deceit, and negligent misrepresentation.
CASE STUDY: EMPLOYER LIABLE FOR MISREPRESENTATION When an applicant for a physical therapist position at a hospital was interviewed, the hospital’s CEO represented that the hospital’s contract with an outside therapy provider would be ending and that the hospital would be bringing physical therapy services in-house. However, the CEO lacked authority to make those changes on his own. He also lacked authority to hire without approval by certain other officials. Nevertheless, the CEO made a firm offer to the therapist.
The therapist accepted the offer and turned down another opportunity. Only then did he learn that the offer had not been authorized and that, in fact, the offered position was not available. In the therapist’s suit against the hospital for negligent misrepresentation, the hospital argued that, since the offer was only for at-will employment, the hospital could have gone through with the hiring, then fired the therapist the next
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The SHRM Essential Guide to Employment Law38
day. The court answered that argument by saying that while the at-will nature of the offer would affect the amount of damages that could be awarded, that factor had no bearing on whether the therapist could bring suit for negligent misrepresentation in the first place.
Employers can protect themselves from negligent misrepresenta- tion suits brought by disappointed applicants by doing the following:
• describing the job accurately and furnishing a written job descrip- tion that is complete and up-to-date, without overselling the position
• giving accurate estimates of job features that are likely to be of interest or concern to an employee, such as overtime require- ments and travel
• allowing the applicant an opportunity to review the employee handbook and all documents the applicant will be required to sign upon hiring, such as arbitration and noncompete agreements
• describing the hiring process, including who makes the decision to offer a job and what further approvals, if any, are necessary
• stating clearly and explicitly that the offer is conditioned on approval by the company’s board of directors or by some other official, if that is the case
• disclosing other relevant facts, such as that the company is about to move its facilities, is considering a possible bankruptcy, or is facing the loss of an important contract that could significantly affect the applicant’s job
• giving the applicant a firm date by which the company will make a decision and, if the company has not made a decision by that deadline, contacting the applicant, informing him or her that the decision is still pending, and asking whether the applicant wishes to continue being considered
• informing the applicant promptly once a decision is made • if the applicant is being rejected, sending a note confirming the rejection, thanking the applicant for his or her interest, and making clear that the applicant is no longer under consideration
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The Hiring Process 39
INTERFERENCE WITH CONTRACTUAL RELATIONS One of the questions every applicant should be asked, both in the application and during the interview, is whether the applicant is bound by any restrictive covenants (such as a confidentiality, nonso- licitation, or noncompete agreement) from previous employment. If the applicant says yes, a copy of the document should be obtained and reviewed by employment counsel to determine whether the applicant can be hired at all and, if so, whether his or her job duties need to be restricted. If the applicant says no, the applicant should be required to certify that fact in writing.
An employer that hires a candidate with knowledge that the employment violates a restrictive covenant with a previous employer is exposed to possible suit by the previous employer for interference with contractual relations.
NEGLIGENT EMPLOYMENT Chapter 1 discusses an employer’s vicarious liability under the doc- trine of respondeat superior—an employer will generally be held liable for torts committed by its employees in the course and scope of employment. But even if the employee’s negligent or willful con- duct is outside the course and scope of employment, the employer might still be liable for injury or damages to third parties under the doctrine of negligent employment.
Take, for example, an apartment building owner who hires a resident manager and provides him with a passkey to all the units. The manager later uses the passkey to enter units whose tenants are on vacation and steal jewelry and electronics. Many courts would conclude that such criminal activity is outside the course and scope of the manager’s employment and that therefore the building owner is not vicariously liable for the thefts. But if it turns out that the manager had several recent convictions for theft, which the building owner could easily have discovered but did not, the building owner may be directly liable under the doc- trine of negligent hiring.
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The SHRM Essential Guide to Employment Law40
The negligent hiring doctrine is based on the notion that the employer has a duty to use reasonable care to select employees com- petent and fit for the work assigned to them and to refrain from retaining the services of an unfit employee. Particularly in positions in which an employee is expected to come into contact with the public, the employer must make some reasonable inquiry before hiring or retaining the employee to ascertain his or her fitness. (Chapter 18 discusses criminal records checks in more detail.)
ALERT! The negligent employment doctrine is not limited to hiring. An employer that learns
about the dangerous propensities of an existing employee but who takes no action to
protect the public can be sued for negligent retention.
Ban-the-box rules, discrimination concerns, and possible inva- sions of privacy all work to restrict an employer’s ability to make inquiries about criminal history or perform criminal records checks. On the other hand, the doctrine of negligent employment holds an employer liable for its employee’s criminal conduct if the employee’s propensity for misconduct could reasonably have been discovered. So what should an employer do in the face of this dilemma? Unfor- tunately, there is no easy answer.
Obviously, the employer must comply with any state and local restrictions. To the extent those restrictions allow inquiries or a records check, the employer should do so only if a criminal history would be relevant to the position being filled, such as involving con- tact with the public or access to company finances. And if a criminal history is discovered, the employer should disregard crimes that are old or otherwise irrelevant to the position being filled.
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