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Employment Law for Human Resource Practice Sixth Edition

DAVID WALSH

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Chapter 4 – Recruitment Chapter Outline

Recruitment Methods

Proving Discrimination in Recruitment: Statistical Evidence

Affirmative Action

Recruiting Foreign Nationals for U.S. Employment

Application Process

Statements by Employers

Statements by Employees

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Chapter 4 - Recruitment

To establish an employment relationship, an employer must first communicate information about the availability of an employment opportunity, and persons interested in pursuing the opportunity must make their interest known to the employer

These essential first steps in the process of becoming employed are recruitment

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Recruitment Methods (1 of 5)

Want Ads and Job Announcements

Typical early steps are to:

Produce documents that announce the job

Describe the job and its requirements; and

Tell prospective applicants what they must do to apply

These documents are printed in newspapers or professional magazines posted on bulletin boards and the Internet, or otherwise made available

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Recruitment Methods (2 of 5)

Want Ads and Job Announcements (cont)

Title VII of the CRA is explicit about employers’ obligations in producing such materials:

It is unlawful for an employer to print or publish such a notice indicating any preference, limitation, specification or discrimination, based on race, color, religion, sex, or national origin

The wording of such ads must be a neutral message

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Recruitment Methods (3 of 5)

Employment Agencies

These agencies are covered by antidiscrimination laws and are expressly prohibited from discriminating against employees in referrals or in any other manner

The difficulty is that they are businesses, and do well when they make their customers happy, so may be tempted to cater to such preferences

Employers must not request that such agencies refer only employees with particular protected class characteristic, or attempt to obtain such information about applicants

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Recruitment Methods (4 of 5)

Nepotism and Word-of-Mouth Hiring

Nepotism refers to favoritism toward family members and other relatives

Nepotism is not a per se violation of Title VII, but when the work force is predominantly white, nepotism operates to exclude minorities as effectively as any intentionally discriminatory policy

Word-of-Mouth recruiting has similar potential to result in discrimination

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Recruitment Methods (5 of 5)

Enlisting Day Laborers

Day laborers are those who, rather than having a fixed place of employment, perform temporary work such as gardening, tree trimming, yard cleanup, moving, construction work, house cleaning and elder care

Many, but not all, day laborers find work outside home supply stores, etc., because they are undocumented immigrants ineligible to work in the U.S.

The situation does not excuse employers from basic legal obligations such as the payment of promised wages

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Proving Discrimination in Recruitment: Statistical Evidence (1 of 2)

Unless recruiting efforts reach a broad spectrum of the available workforce and successfully convey the employer’s sincere desire that all qualified candidates apply, the most careful and unbiased selection process will not result in equal employment opportunity

Discrimination in recruitment is especially insidious and difficult to combat

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Proving Discrimination in Recruitment: Statistical Evidence (2 of 2)

Cases challenging discriminatory recruitment practices are often brought by the EEOC

Discrimination affects the applicant pool in a way that makes the discrimination harder to detect

There may be a “pattern or practice” of intentional discrimination; women and minorities may be excluded from even applying, knowing the employer is hostile to them

Statistical evidence requires comparing the applicant pool of the employer to the relevant labor market

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Affirmative Action (1 of 4)

Affirmative action has been defined as:

“those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity”

Firms that do business with the federal government must comply with Executive Order 11246, requiring them to have a nondiscrimination clause in their contracts, and to affirmatively promote equal opportunity

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Affirmative Action (2 of 4)

Similar requirements apply under The Rehabilitation Act of 1973, and VEVRAA

Compliance is monitored by the Office of Federal Contract Compliance Programs (OFCCP)

An affirmative action program may be required by a consent decree

For most employers, adoption of an affirmative action plan is voluntary and requires a written affirmative action plan

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Affirmative Action (3 of 4)

The affirmative action plan must include:

Reasonable Self-Analysis

Do employment practices exclude certain groups?

Reasonable Basis for Affirmative Action

Does underutilization exist?

Practical Considerations: To analyze their workforces and determine whether affirmative action is needed, employers must document the protected class characteristics of their employees. How can this be accomplished in an effective and legal manner?

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Affirmative Action (4 of 4)

The affirmative action plan must include: (cont)

Reasonable Affirmative Actions

The plan sets goals for improvement in the utilization of women and minorities and timetables or achieving those goals, which are reasonably obtainable through good faith effort

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Recruiting Foreign Nationals for U.S. Employment (1 of 2)

Visa Programs

Foreign nationals who do not have a green card must obtain visas permitting them to work in the U.S.

Visa classifications include:

H-1B visas (granted to those in specialty occupations)

H-1B dependent employers must meet additional requirements

H-2 visas (for foreign nationals working temporarily)

L-1 visas (to temporarily transfer staff from foreign facilities to operations in the U.S.)

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Recruiting Foreign Nationals for U.S. Employment (2 of 2)

Labor Trafficking

Labor trafficking has been defined as the “recruitment, harboring, transportation, provision, or obtaining of a person” for the purpose of obtaining his or her labor or services, “through the use of force, fraud, or coercion,” and that subjects the person “to involuntary servitude, peonage, debt bondage, or slavery”

The common elements in trafficking cases are recruitment wit false promises, indebtedness, isolation, dependence on the employer, and severe mistreatment

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Application Process (1 of 8)

By and large, employers are free to decide

Whether applications will be accepted from anyone

What must be done to apply

How long applications will be accepted; and

How long submitted applications will remain valid

Practical Considerations: What, if any, legal obligation do employers have to reasonably accommodate disabled job applicants during the recruitment process? Which types of modifications to the recruiting process might be called for?

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Application Process (2 of 8)

Application forms and other records produced in the hiring process must be kept for at least one year

The federal governments definition of applicant is broad

An internet applicant is one who expresses interest in employment via the internet

Preemployment Inquiries

Employers must not ask questions whose answers reveal the protected class characteristics of job candidates (for example, on applications, during interviews, or during informal chatting with the applicant)

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Application Process (3 of 8)

Preemployment Inquiries (cont)

Inadvisable preemployment inquiries fall into four general categories; Employers:

Should not directly inquire about protected class characteristics

Should not indirectly inquire about protected class characteristics

Should avoid questions about requirements or criteria that are not uniformly applied to all job candidates

Should avoid questions about requirements that have a high probability of producing disparate impact

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Application Process (4 of 8)

Preemployment Inquiries (cont)

Medical Inquiries Prior to a Conditional Offer of Employment

The ADA differs from other federal antidiscrimination laws in directly prohibiting preemployment inquiries that might reveal the existence, nature, or severity of an applicant’s disability

Employers must refrain from seeking medical information from all applicants, disabled or not

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Application Process (5 of 8)

Preemployment Inquiries (cont)

Medical Inquiries Prior to a Conditional Offer of Employment (cont)

Medical inquiries include questions about disabilities, medical and psychological conditions, medical histories, medications taken and workers’ compensation claims filed

Employers should seek that information ONLY after job candidates have been conditionally offered employment based on their qualifications

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Application Process (6 of 8)

Preemployment Inquiries (cont)

Statements by Employers

Recruitment entails extracting information from job candidates, but also providing information and attempting to persuade candidates to accept job offers

Fraud, negligent misrepresentation and breach of contract may result from misrepresentations and unfulfilled promises

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Application Process (7 of 8)

Preemployment Inquiries (cont)

Statements by Employers (cont)

Practical Considerations: To the extent that doing so is permitted by state law, would you recommend that an employer examine job candidates’ social media activity in the recruiting process? Why or why not? If you think that this approach should be used, how should it be implemented?

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Application Process (8 of 8)

Preemployment Inquiries (cont)

Statements by Employees

In cases where employers must defend their refusal to hire, courts regard refusal to hire due to falsification or omission by the applicant as a legitimate, nondiscriminatory reason for not hiring

Cases involving after-acquired evidence of deception may result in dismissal for the deception, even after the employee has filed a valid claim

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Next Class:

Chapter 5 – Background Checks, References, and Verifying Employment Eligibility

Must you check the background of every applicant? What, specifically, do you need to check?

Why?

The answers to these questions and more are next

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Next Class:

Chapter 6 – Employment Tests

When may you use tests to screen applicants?

What kinds of tests can you use, and what kinds are prohibited?

The answers to these questions and more are next

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