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HIRING

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IMPORTANT NOTICE

This portion of the Neponset Valley Chamber website contains information on various employment-related topics. The materials included on each topic do not necessarily comprehensively cover the entire topic. Each section contains articles or memoranda that NVCC H.R. Council members who are employment law attorneys or human resources consultants have written in relation to the various topics. The most recently provided information under each topic will appear first. The information provided in these articles/memoranda was accurate at the time it was first issued. However, you should be aware that employment law is frequently subject to change. Thus, information on this website may not still be completely accurate at the time you read it. The information here should provide helpful guidance, but is not intended to constitute legal advice applicable to any particular situation. You should also be aware that the Neponset Valley Chamber of Commerce has provided this information as a service to our members. However, the information provided is not advice provided by the Chamber of Commerce, nor would the Chamber of Commerce be in any way legally responsible for any inaccuracies. Any opinions expressed are strictly those of the authors.

HIRING IN COMPLIANCE WITH THE LAW

By Attorney Leslie Lockard
The Law Office of Leslie Lockard, PC
1500 Providence Highway, Suite 33
Norwood, MA 02062
Phone (781)551-0800
Fax (781)551-0801
Llockard@leslielockard.com
www.leslielockard.com

There are a number of laws which govern what employers can and cannot do in relation to hiring. Below are some of the more important considerations which employers should know. However, you should be aware that the law is constantly changing, and that future changes could render the information below in some respects inaccurate or incomplete.

IT WOULD BE ADVISABLE TO GIVE A COPY OF THIS MEMO TO ANYONE AT YOUR COMPANY INVOLVED IN HIRING OR INTERVIEWING JOB APPLICANTS.

HELP WANTED ADS

Avoid language which expresses any limitation or discrimination as to race, color, religious creed, national origin, sex, age, sexual orientation, ancestry or disability status, e.g., language indicating that you want to hire male laborers or female nurses, or "salesmen" or "waiters".

If the ad provides only a telephone number to call for information, a TDD number should be included for the deaf.

EMPLOYMENT APPLICATIONS

Employment applications must contain a statement that it is illegal to administer a lie detector test as a condition of employment.

If the application has a work history section, the application must state that applicants may include volunteer work done by them.

There must be a statement that an applicant with a sealed record on file with the Commissioner of Probation may answer that he has "no record", in response to a question relating to prior arrests, criminal court appearances or convictions.

THINGS EMPLOYERS SHOULD NOT ASK IN APPLICATIONS AND IN INTERVIEWING

I. PROHIBITED QUESTIONS NOT RELATED TO DISABILITY

Do not ask the age or birth date of employment applicants, or ask questions which would reveal age, such as, "what year did you graduate from college".

Do not ask about the birthplace of an applicant or of his family members.

Do not ask about national origin, ancestry or ethnicity.

Do not ask if the applicant, the applicant's parents or spouse are nationalized or native-born citizens of the U.S., or the date they acquired citizenship. Do not ask about foreign military experience or about any places of business of the applicant's relatives. You can ask, "are you legally authorized to work in the U.S.?".

Do not ask applicants to produce naturalization papers or military discharge certificates, or copies of their criminal records.

Do not ask any questions about race or color. Do not ask for a photograph to accompany an application.

Do not ask any questions about religion, religious practices, religious obligations or about which religious holidays are observed by the applicant.

Do not ask questions about gender except in very limited circumstances where gender is a legitimate job qualification, e.g., a female ladies room attendant.

Do not ask the applicant's maiden name or any questions that pertain to only one sex. (e.g., inquiries into marital status asked only of women.) You can ask both sexes, however, whether they have ever been known by any other names.

Do not ask whether the applicant has children, plans to have children, or has child care arrangements.

Do not ask about sexual orientation. Do not ask if the applicant is gay or bisexual.

Do not ask about arrests as to which no conviction resulted, about first convictions for certain minor misdemeanors (including drunkenness, simple assault, speeding, minor traffic violations, affray and disturbing the peace), or about conviction for a misdemeanor where the date of conviction or completion of any period of incarceration occurred five or more years prior to the date of inquiry, unless the person has been convicted of another offense within those five years. You can ask, "Have you been convicted of a felony? Have you been convicted of a misdemeanor within the past five years? (other than those certain minor misdemeanors)".

Do not ask about membership in organizations which would likely disclose the applicant's protected status, such as the Disabled American Veterans or NAACP. It is generally best to avoid any questions about organizations of which applicants are members.

Do not ask applicants about their health insurance status or that of their spouse, dependents or the family members. Employers cannot discriminate against applicants on the basis of health insurance status.

Do not ask if the employee is now or has ever been a union member, or whether he would support unionization of the company.

Do not ask if the applicant has ever brought a suit against a former employer.

II. DISABILITY DISCRIMINATION LAW COMPLIANCE AND QUESTIONS THAT CANNOT BE ASKED ABOUT DISABILITIES

Under the federal Americans with Disabilities Act (which applies to employers of 15 or more employees) and under the state discrimination statute (which applies to employers of 6 or more employees) there are strict rules with regard to what can be asked to employment applicants about disability. Employers generally cannot ask questions which are likely to elicit information about a disability, or conduct medical examinations, until after a conditional job offer is made to the applicant. A conditional job offer means that you offer a position with the understanding that the offer can be rescinded if a medical exam or other inquiry demonstrates that the applicant has a disability which prevents him from doing the essential functions of the position. Before making this conditional job offer, an employer generally cannot ask questions about disability. For example, under the applicable regulations, an employer could not ask "how many days were you sick last year?", since that is likely to elicit information about a disability , but could ask "how many days were you absent?", since one could be absent for many reasons other than sickness or disability.

What Employers Can and Can't Do Before Making A Conditional Job Offer

1. You cannot ask the applicant whether he has any disabilities, or whether he has any particular conditions, such as AIDS or epilepsy, which may constitute disabilities.

2. You can ask whether the applicant can perform any and all job functions with or without reasonable accommodation, provided that all applicants in the same job category are asked these questions. For example, you can ask: "This job requires you to drive a truck. Can you do that?"

3. You generally can't ask applicants to describe or demonstrate how they would perform job functions unless all applicants in the job category are asked to do this.

4. You generally cannot ask whether the applicant will need reasonable accommodation to perform the functions of the job.

5. You can state the attendance requirements of the position and ask whether the applicant can meet them. You can ask how many days the applicant was absent last year, or how many Mondays or Fridays he/she was absent (but you can't ask how many days the applicant was sick).

6. You can't ask whether the applicant can perform "major life activities", such as, standing, lifting, walking, unless you are asking about his ability to perform specific job functions. (e.g., if lifting or walking is part of the job.)
7. You can't ask about diseases and medical or psychiatric conditions, or about hospitalizations or medical or psychological treatment.

8. You can't ask about previous job-related injuries, health insurance history or workers' compensation history.

9. You generally can't ask questions about medications, such as "What medications are you taking?", or "have you ever taken AZT or insulin?"

10. You can ask whether an applicant is currently using illegal drugs on either a casual or addictive basis, or about past casual use of illegal drugs, but you can't ask about past addiction. You generally can ask if the applicant has ever used illegal drugs and, if so, when was the last time. You can't ask, though, whether the applicant has ever been addicted to illegal drugs or treated for drug abuse. You generally can ask applicants about casual alcohol use, past or present, but cannot ask about past or present alcoholism or alcoholism treatment.

11. You may not ask third parties questions that you could not ask the applicant directly. Therefore, you could not ask a previous employer about the applicant's worker's compensation history, or about whether he has a disability or about how many days the employee was out sick.

12. You can't require medical examinations. You can generally require physical agility or physical fitness tests, such as those which measure the ability to run or lift (if running or lifting are part of the job). You can test an applicant's ability to read labels or distinguish objects as part of a demonstration of ability to do the job, but you can't require applicants to be tested by an ophthalmologist or read an eye chart.

13. You can't give psychological exams if they are geared to disclose medical information, such as anxiety, depression or compulsive disorders. It is permissible if the test is used only to measure tastes and habits. The ADA would permit you to test for honesty, but Massachusetts law prohibits employers from requiring applicants or employees to take lie detector tests, which are broadly defined to include examinations which test for honesty.

14. You cannot give alcohol tests to applicants.

15. You can tell applicants what is involved in the hiring process and ask whether they will need any reasonable accommodation to take tests, fill out application forms or do anything else typically required of applicants.

16. You cannot give employment tests unless they actually predict the applicant's ability to perform the essential functions of the job. If the tests used screen out or tend to screen out persons with disabilities, the employer must be able to prove that the tests are job-related and consistent with business necessity. An employer should consider that manual or speech impairments may affect an applicant's performance on a particular type of test. For example, a person with a speech impediment may be qualified to perform the essential functions of a job which does not require clear speech. An oral test would not accurately predict the applicant's ability to perform the job.

Employers must make reasonable accommodations when necessary to ensure that tests actually measure the abilities they are intended to measure. Such reasonable accommodations may include but are not limited to the following:

(a) providing of extra time;

(b) providing of a reader or interpreter;

(c) providing a tape recorded test; and

(d) allowing test answers to be recorded in alternative ways.

17. You cannot require an HIV test as a condition of employment.

18. You may invite applicants to voluntarily disclose a disability to assist the company in affirmative action efforts. You must make it clear, however, that the information provided will be used solely in connection with affirmative action efforts and will be kept confidential, and that non-disclosure by the applicant will not subject him to any adverse treatment.

After Making a Conditional Offer of Employment

After making a conditional offer of employment, an employer may ask disability related questions and require medical examinations, and may ask about such matters as workers' compensation history, prior sick leave, illnesses and general physical and mental health. However, such examinations and inquiries must be conducted solely to determine whether the employee is capable of performing the essential functions of the position. Moreover, all entering employees in the same job category must be subjected to the same examination or inquiry, regardless of disability. Also, all medical information obtained about employees and applicants must be kept confidential, and must not be placed in the employee's personnel file.

If you should decide that you want to rescind a conditional job offer due to a medical condition, BE SURE TO FIRST CONSULT AN EMPLOYMENT LAW ATTORNEY! Failure to do so is very likely to lead to a potentially expensive lawsuit by the rejected applicant. For example, a job offer should not be rescinded without a thorough evaluation of the applicant's particular situation, job duties, etc.

INTERVIEWING GUIDELINES FOR NVCC HUMAN RESOURCES COUNCIL

November 6, 2003
Presented by
Patricia Griffin-Carty
Griffin-Carty Associates
Interviewing Phases

Phase 1: Plan

Phase 2: Conduct

Phase 3: Evaluate

Types of Interview Questions

The primary goal of the interview is to gather information about the candidate to determine if he/she has the necessary skills/experience to perform the job responsibilities of the open position. When collecting this data, use several different types of questions to determine the candidate's abilities.

Open-ended

Closed-ended

Probing

Interview Guide

Step 1: Open the Interview

Step 2: Gather Information

Step 3: Close the Interview

Competency - Based Interviewing

Effective interviews focus on the skills needed for the job and the candidate's experience in those specific areas. Review the following list and determine which items are important for current department openings.

Competency Examples

Competency - Based Interview Questions

Time Management/Organization

Describe a time on a job when you were required to complete multiple tasks within a tight timeframe. How did you handle this?

Achievement/Taking Initiative

Describe a situation in which you suggested a new procedure to improve some aspect of your job. What steps did you take? What was the result?

Analytical Thinking

Give me an example of a complex problem you have faced and tell me how you approached it. What did you do first? Walk me through the steps you took.

Communication

Describe a time when you presented an idea to someone who had a very different style than yours. What was your approach? What was the listener's reaction?

Competency - Based Interview Questions

Customer Service

Give an example of an interaction with a customer or client in which you were able to exceed that individual's expectations. What did you do? How did the customer respond?

Decision Making

Tell me about a tough decision you had to make when no precedent existed. What were the issues? What factors did you consider?

Team Work

Describe a recent project you were involved with that was a collaborative effort. What was your role? How did the project turn out?

Interview Checklist

Use the following questions as a checklist for interviewing practices.

1. __ Analyze the open position in terms of tasks and behaviors.

2. __ Create a list of interview questions focused on the job
competencies.

3. __ Start the interview with questions chosen to build rapport.

4. __ Ask open-ended and probing questions.

5. __ Ask and listen for specific, experiential examples.

6. __ Take notes during the interview on candidate responses.

7. __ Allow for silence.

8. __ Offer clarification when needed.

9. __ Seek additional information through probing questions.

10.__ Use verbal and non-verbal signals to indicate attentive
listening.

11.__ Encourage a quiet candidate to supply more detail.

12. __ Maintain control of the interview when dealing with a
talkative candidate.

13. __ Use transitions when moving from each phase of the
interview or area of questioning.

14. __ Avoid general, hypothetical or leading questions.

15. __ Complete the interview before beginning evaluation of the
candidate.

190 Vanderbilt Ave.
Suite 1
Norwood, MA 02062
(781) 769-1126
Fax: (781) 769-0808
Doug@nvcc.com