Hiring: Second Chance Initiatives and Background Checks Series, Part 4

March 26, 2020
By Mary Ann Saenz-Thompson, SPHR, SHRM-SCP, TAC Human Resources Generalist
Risk Management News

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This is part four of a four-part series on second chance initiatives and background checks. The previous article covered background checks and considerations.

Hiring the right employee

The primary goal in hiring is to find an employee who can do the job as expected. A secondary goal is to conduct the hiring process in a manner that does not expose the employer needlessly to liability or other employment-related disputes.

And finally, the hiring process and documentation should be structured so that unless intended, no property interest is created in fact or perceived by the new hire. Property interest in a job occurs when the employee is dismissed for "cause," "just cause," "proper cause," "sufficient cause," or other similar language.

County employees usually have no vested property interest in their employment except for those in specific civil service jobs, union or collective bargaining jobs, or who work in a county that has specific county-written or due process practices.

Planning and preparation are key elements for effective interviewing. Steps in preparing for an interview include:

  1. Selecting a time and place for the interview that will minimize the possibility of   interruptions
  2. Determining how much time to devote to each interview
  3. Knowing the specific requirements, duties and conditions of the job
  4. Reviewing the application prior to the interview, and
  5. Determining what questions will be asked concerning the skill sets needed, abilities, and past work performance.

The hiring criteria that you establish from the beginning should serve as your strict guide throughout the interviews and evaluation of applicants. All questions should relate to the requirements for the job and the applicant's ability to perform the essential job functions. Questions that elicit answers that would directly or indirectly reveal an applicant's status in a protected category (race, color, national origin, religion, sex, age, or disability) under EEO legislation should not be asked unless necessary because of a bona fide occupational qualification (BFOQ).

In addition, questions asked directly or indirectly related to gender identity or sexual preference should be avoided. Currently, gender identity and sexual preference are not protected classes under Title VII of the Civil Rights Act of 1964; however, the EEOC will consider this to be a form of sexual discrimination and may investigate claims related to gender identity and sexual orientation. Read more from the EEOC on gender identity and sexual orientation discrimination.

Questions that are asked of one category of applicants (such as women or older individuals) but that are not asked of all other applicants give the appearance of potential discrimination. Under the Americans with Disabilities Act Amendments Act (ADAAA), all inquiries into an applicant's medical background are prohibited. (The ADAAA also prohibits pre-employment medical examinations. A "post job offer" examination is allowed with the offer being contingent on the individual passing the examination showing they can perform the essential job duties.)

Questions about arrest records and convictions are not prohibited by federal law and Texas does not have a "ban the box" statute. As a best human resource practice, unless an applicant's criminal history is relevant to a specific job position these questions should be postponed until later in the hiring process. Background checks can be conducted after a post-conditional offer is extended unless there are specific job requirements defined prior to the selection process that would eliminate consideration of an applicant with a criminal history. A post-conditional offer can be rescinded based on background check results.

Since a goal during an interview is to learn as much as possible about the applicant's qualifications, open-ended questions such as those that require a detailed answer should be asked rather than those that only require a "yes" or "no" answer. Leading questions that give an individual an indication of the response the employer wants to hear should not be asked.

Behavior interviewing is a technique that can be used to interview candidates for certain jobs. It requires developing specific behavioral questions that ask about soft skills, personal qualities that enable someone to do the job. Some of these soft skills include problem solving, critical thinking, listening and speaking skills. It is also important to be prepared to justify the use of behavioral interview questions and any required employment test that may be administered in the interviewing process.

Immediately after the interview, the interviewer should make notes about the applicant's strong points, weak points and overall suitability for the job. In evaluating an applicant, the interviewer should be aware of and control feelings that distort the evaluation, such as the "halo" and "horns" effect, personal biases, and personality traits not related to the job. The "halo" and "horns" effect occurs when an interviewer has specific inferences, good or bad, about an applicant based on a single trait or general impression.

Documenting the selection made is important. Be specific in listing the reasons for selection and remember that the term "best qualified applicant" is not specific enough to delineate the candidates. For example, one employee may have a larger skill set but may not show interest during the job interview. This applicant would not be the "most qualified" regardless of the larger skill set.

All documentation made during the interview process is subject to open records under the Public Information Act. Any questions regarding this should be directed to your county attorney.

It is important to remember that while an applicant may not interview well, they may be a better hire than someone who interviews well. Making a hiring decision to find the right employee is not an easy task!

Final thoughts

Given the increased pressure of governmental employers to fill open vacancies and new jobs during times of low unemployment, there may be a willingness to consider hiring someone with a criminal record if that person is the best qualified for the job. This was confirmed in a recent nationwide Society of Human Resource Management employer study that examined experiences with and opinions toward workers with a criminal history. Every employer will have to determine if and how they will approach hiring workers with criminal records. This is new territory with an opportunity to create dialog about this issue between decision-makers.

For further information on these or other topics, please contact your assigned TAC HR consultant.  It is recommended that you additionally consult your county attorney or other legal counsel. Recommendations and information provided are based on current information in the field of Human Resources.  This information is not intended to be, nor should they be construed as, legal advice or legal guidance.