hiring support staff - wasbo.com · hiring support staff may 15, 2015 2 presented by: robert butler...
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Hiring Support Staff
May 15, 20152
Presented by: Robert ButlerWASB Associate Executive Director and
Staff Counsel
[email protected]@wasb.org
1-877-705-4422 (phone)1-608-512-1703 (direct phone)
1-608-257-8386 (fax)
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General Processes Job Descriptions Posting of Vacancy / Advertising Applications Selection of Applicants for Interviews Interviews and Testing
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Reference, Criminal Background and Consumer Reporting Checks
Recommendation for Conditional Offer of Employment
Pre-employment Drug Screening Nepotism Policies and Code of
Ethics for Public Officials Making the Hire
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The process is based on the following guidelines:
◦ Essential Functions:
“Essential functions” means the fundamental job duties of the employment position and does not include the marginal functions of the position.
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The process is based on the following guidelines:
◦ Interview Questions: The district’s interview questions are structured to maximize the district’s ability to determine whether the candidate can perform the essential functions of the job.
◦ Recommendations: Those charged with recommending candidates for hire will base their recommendations for selection primarily on an applicant’s ability to perform the essential functions of the job.
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The process is based on the following guidelines:
◦ Objective Data and Observations: The district’s interests are best served when interviewers base their recommendations upon objective data and observations.
◦ Adherence to the Process: The district consistently follows the outlined process for all candidates barring any extenuating circumstances.
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Timelines of the Process: The district completes its selection process in a thorough and timely manner.
Staff Member Participation: The district includes staff members that will have the most interaction with the new employee during the hiring process whenever possible.
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Training of Interview Team: ◦ The district should train all
participants on the hiring and interview process prior to commencing candidate interviews.
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Preparation: ◦ Those selected to be on the
interview/selection team will show up on time and prepared for each interview session and will remain committed to the process throughout its duration.
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Confidentiality Statement/Agreement: ◦ In some districts, those
selected to be on the interview committee sign an agreement that they will not disclose information from the process, unless required by law or unless expressly authorized/directed by the District Administrator.
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Position Descriptions serve multiplepurposes and should include, at aminimum:◦ Qualifications for the position, and◦ Essential functions of the job [for
evaluation purposes and applicable laws, e.g. Americans with Disabilities Act, WFEA.]
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The district’s interview questions and job descriptions are structured to maximize the district’s ability to determine whether the candidate can perform the essential functions of the job.
“Essential functions” means the fundamental job duties of the employment position and does not include the marginal functions of the position.
Those charged with recommending candidates for hire will base their recommendations for selection primarily on an applicant’s ability to perform the essential functions of the job.
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The EEOC has offered the following advice on defining Essential Functions:
◦ Review the purpose of the position and the importance of the actual job functions in achieving the purpose. In evaluating the importance of a job function, school officials should consider:
The frequency at which the function is performed;
The amount of time spent on the function;
Whether the function requires specialized skill or training inherent to the position;
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Review the purpose of the position and the importance of the actual job functions in achieving the purpose. In evaluating the importance of a job function, school officials should consider:
The number of employees qualified and available to perform the function; and,
The consequences of not performing the function.
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EEOC has offered the following advice on defining Essential Functions (continued):◦ Focus on the purpose of the job
function and the result to be accomplished rather than the manner in which the function is to be performed. ◦ In other words, if the position exists to
perform the particular function, then the function is essential.
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EEOC has offered the following advice on defining Essential Functions:◦ Each job description should also provide general
guidance for the performance of duties not specifically outlined in the job description. A statement such as “He or she shall perform such other duties as assigned” may provide this general guidance. ◦ Finally, the job description should explicitly state the
goal or purpose of the position and the title of the position or person to whom the employee reports.
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Posting Requirements:◦ Is it a change in
assignment, a new position, or a vacancy?◦ Is there any distinction
between the internal posting/transfer process? ◦ Changes in assignment
are different from hiring decisions and the two should not be confused.
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Likely Sources of Posting Requirements:◦ Board Policy◦ Administrative Procedures◦ Employee Handbook◦ Collective Bargaining Agreement (if applicable).EXAMPLE: Notification to employees on layoff/employees with reemployment options.
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Some Common Posting Requirements/Considerations:◦ Position title. ◦ Posting date.◦ Application deadline and statement notifying
potential applicants: That the district will neither accept nor review
application materials received after the deadline has passed; or
That a completed application must be received by the deadline to ensure that the application receives full consideration.
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Some Common Posting Requirements/Considerations:◦ Description of position duties and
responsibilities (link to online job description if possible – provide web address to online job description if paper posting).◦ Brief description of the district.◦ Equal Employment Opportunities statement
and explanation of who may be contacted regarding any requests for accommodations in regard to the hiring process.
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Some Common Posting Requirements/Considerations:◦ Required education and/or certifications, qualifications, skills, work experience, etc.◦ Important terms of employment ◦ Pay and benefit range (if known)
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Posting Requirements:◦ Location(s) of the position or work to
be performed (subject to the district’s ability to change, i.e. position is district-wide) ◦ Application instructions for internal and
external applicants, including a list of all application materials (e.g., application, resume, letter(s) of reference, official transcripts, etc.) that must be submitted.
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Employee residency requirements are now illegal in Wisconsin due to 2013 Wisconsin Act 20.
(In the past, residency requirements had largely been upheld by courts as constitutional provided that the governmental entity had a rational basis for imposing the requirement.)
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66.0502 Employee residency requirements prohibited. (1) The legislature finds that public employee
residency requirements are a matter of statewide concern.
(2) In this section, "local governmental unit" means any city, village, town, county, or school district.
(3) (a) Except as provided in sub. (4), no local governmental unit may require, as a condition of employment, that any employee or prospective employee reside within any jurisdictional limit.
(b) If a local governmental unit has a residency requirement that is in effect on July 2, 2013, the residency requirement does not apply and may not be enforced.
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Employment Discrimination: Wisconsin and/or federal laws make it illegal for
employers to discriminate against properly qualified individuals on the following bases:◦ Race◦ Color◦ National origin◦ Ancestry◦ Citizenship◦ Disability◦ Age◦ Creed/Religion◦ Genetic information◦ See §§111.321, ADA, Title VII, ADEA, GINA, et al
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Employment Discrimination (Continued): Wisconsin and/or federal laws make it illegal for employers to discriminate against properly qualified individuals on the following bases:◦ Sex◦ Sexual orientation◦ Marital status◦ Pregnancy◦ See §§111.321, Pregnancy Non-Discrimination, Title
VII
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Employment Discrimination (Continued): Wisconsin and/or federal laws make it illegal for employers to discriminate against properly qualified individuals on the following bases:◦ Arrest record◦ Conviction record
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Arrest and Conviction (continued): ◦ Although 2011 Wisconsin Act 83 modified Wisconsin’s Fair
Employment Act such that it is not employment discrimination for educational agencies, including school districts, to refuse to employ or to terminate from employment an individual who has been convicted of a felony and who has not been pardoned for that felony, the WASB cautions against a zero-tolerance approach toward employing (or not employing) unpardoned felons.
◦ See, e.g., http://www.eeoc.gov/eeoc/foia/letters/2010/titlevii_conviction_and_safe.html. and See, e.g., U.S. EQUAL EMP. OPPORTUNITY COMM’N, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, available at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
See §§111.321, Wisconsin Statutes
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Arrest and Conviction (continued): ◦ The circumstances of any particular situation may lead
administrators to conclude that hiring someone who has a felony conviction on his or her record is in the best interest of the district. Furthermore, to the extent that a zero-tolerance policy would have a disparate impact on members of a protected class of applicants or employees, enforcement of the zero-tolerance policy could violate Title VII of the Civil Rights Act of 1964. See, e.g., http://www.eeoc.gov/eeoc/foia/letters/2010/titlevii_conviction_and_safe.html. and See, e.g., U.S. EQUAL EMP. OPPORTUNITY COMM’N, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, available at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
See §§111.321, Wisconsin Statutes
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Employment Discrimination(Continued): Wisconsin and federal laws make it illegal for employers to discriminate against properly qualified individuals on the following bases:◦ Military service◦ Use or nonuse of lawful products off the employer’s
premises during nonworking hours◦ An individual’s refusal to attend a meeting or to
participate in any communication about religious or political matters.
◦ Union membership or activities◦ Declaration of bankruptcy
See §§111.321, 111.70(3)(a)3,11 U.S.C. §525(a), USERRA
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Department of Justice Interpretation that Title VII Covers Discrimination based upon Gender Identity:
◦ Department will no longer assert that Title VII's prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination).
◦ http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2014/12/18/title_vii_memo.pdf
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On the primary application form, make every effort to avoid seeking, directly or indirectly, any information relating to the characteristics protected by state or federal law.
“Solutions” to obtaining necessary information include waiting until later in the process and creating reliable “firewalls.”
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Applicant Certification: The District should require each applicant to certify that he/she:
• personally completed the statement and carefully reviewed the information that he/she has disclosed;
• understands and agrees that all information and records that he/she provides (directly or indirectly) to the school district in support of the application for employment are accurate, truthful, not misleading, and materially complete;
• acknowledges an ongoing duty to immediately notify the district if it comes to his/her attention that anything was inaccurate, false, misleading, or materially incomplete; and
• acknowledges that if the school district determines that he/she has omitted any required information from any responses or provided any false, inaccurate, or misleading information of any kind, the district may reject his/her candidacy for employment or terminate any employment that has already commenced.
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Not a Contract or Offer of Employment:◦ Applications should also declare that: The district is an equal opportunity employer that will not
discriminate against an applicant on any prohibited bases. The application itself is neither an offer of employment nor
an employment contract.
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Record Retention: ◦ Application materials received by the
application deadline must be retained: in accordance with the district’s
records retention policy or the records retention law if the board
has not adopted a records retention policy approved by the state Public Records Board.
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Record Retention: ◦ State: DPI Record Retention Schedule for School
Districts recommends:◦ 3 years for applicants not hired◦ 6 years after date of resignation, retirement or termination ◦ Record Definition: For purposes of Wisconsin’s
public records law, “‘record’ does not include drafts, notes, preliminary computations and like materials prepared for the originator’s personal use. . . .” Wis. Stat. §19.32(2).
Source: http://publicrecordsboard.wi.gov/docview.asp?docid=15892&locid=165
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Application Materials Retention - Federal:◦ Accepted application materials: Should be retained
for no less than one year from the date in which (1) the record was created or (2) the district offers the position to an applicant, whichever is later.
◦ Interviewer’s Notes: An interviewer’s personal notes from the interviews need not be collected or retained, provided the notes were prepared solely for the interviewer’s personal use during the interviewing/hiring process. If, however, the notes were made on an official district form or were created for the use of the committee as a whole, they must be retained pursuant to the state public records law. 29 C.F.R. §§ 1602.14, 1627.3(b)(1)(i).
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Unsolicited Applications: ◦ Provided the district has adopted a
policy of refusing to accept unsolicited applications and applications received after a posted deadline, and the policy has been consistently enforced, the district need not retain unsolicited applications or applications received after a posted application deadline has passed.
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Who to Interview: Administrator discretion on who to interview restrained by, or defined by: ◦ Collective Bargaining Agreement (if applicable).◦ Board Policy◦ Employee Handbook◦ Administrative Rules
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Screening of Applications:◦ Whenever possible, screen all applicants in
conjunction with the position description and posting requirements.
Scheduling of Interviews:◦ The administrator and/or interview committee should
then schedule interviews with qualified applicants as soon as possible after the screening so the district can fill the position as quickly as possible.
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Prepare Interview Questions in Advance: ◦ Establish specific written interview questions that will
help determine whether the candidate can adequately perform the essential functions of the position. ◦ Interview questions may be solicited from team
members or other administrators.
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Written Questions: ◦ Questions have many different purposes: Elicit responses that describe the candidate’s
actual prior experience Elicit concrete, specific examples of subjective
statements/qualities Require the candidate to formulate a response
to a hypothetical situation or circumstance.
◦ Once questions have been established, the same basic questions should be used for each candidate for the same vacancy, allowing for reasonable follow-up questions unique to the interview.
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Honesty Testing: ◦ Under no circumstances, may the supervising
administrator or hiring committee require any applicant to submit to honesty testing, such as a polygraph, lie detector or similar device. ◦ It is TRUE that the use of honesty testing during the
hiring process is prohibited under section 111.37(2) of the Wisconsin Statutes!
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Social Media Inquiries: 2013 Wisconsin Act 208, provides that no employer, including a school district, may do any of the following: ◦ Request or require an employee or applicant for
employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account.
◦ Discharge or otherwise discriminate against an employee for exercising the right to refuse to disclose access information for, grant access to, or allow observation of the employee’s personal Internet account, opposing an employer practice that violates this new law, filing a complaint or attempting to enforce rights granted to employees under this law, or testifying or assisting in any action or proceeding to enforce such rights.
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Social Media Inquiries: 2013 Wisconsin Act 208, provides that no employer, including a school district, may do any of the following: ◦ Refuse to hire an applicant for employment
because the applicant refused to disclose access information for, grant access to, or allow observation of the applicant’s personal Internet account.
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Social Media Inquiries: the Act also provides for a partial list of the express exceptions that apply to the above listed restrictions on employers, this new law does not prohibit an employer from doing any of the following:1.Viewing, accessing, or using information about an employee or applicant for employment that can be obtained without access information or that is available in the public domain. 2.Requesting or requiring an employee to disclose the employee’s personal electronic mail address. (Note: Although this exception within this new law does not reference applicants for employment, it is unclear if this new law actually intends to prohibit an employer from requesting or requiring an applicant to provide a personal electronic mail address.https://docs.legis.wisconsin.gov/2013/related/acts/208
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Pre-employment Medical Examinations:◦ An Employer may make pre-
employment inquiries into the ability of an applicant to perform job-related functions.
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Employment Entrance Examination: An Employer may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if◦ (A) all entering employees are
subjected to such an examination regardless of disability;
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Employment Entrance Examination: An Employer may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if◦ (B) information obtained regarding the
medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that:
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◦ (B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that (i) supervisors and managers may be informed
regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
(ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
(iii) government officials investigating compliance with this chapter shall be provided relevant information on request; and
◦ (C) the results of such examination are used only in accordance with the limits set forth in statutes.
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◦ Defense: Tests will be upheld if alleged application of
qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under the ADA and other applicable law.
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Physical Testing: ◦ Job-Related and Business
Necessity◦ Ability to Perform with or without
an accommodation. http://www.eeoc.gov/policy/docs/
guidance-inquiries.html
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Physical Testing: ◦ Individual doesn’t pose a direct
threat to the health or safety of other individuals in the workplace.◦ Special Restrictions on
Uncorrected vision, infectious or communicable diseases, illegal use of drugs & alcohol http://www.eeoc.gov/policy/docs/
guidance-inquiries.html
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Physical Testing: ◦ Accommodation: An employer may
require an employee/applicant to provide documentation that is sufficient to substantiate that s/he has an Americans with Disability Act disability and needs the reasonable accommodation requested, but cannot ask for unrelated documentation. ◦ http://www.eeoc.gov/policy/docs/guid
ance-inquiries.html
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Physical Testing: ◦ This means that, in most
circumstances, an employer cannot ask for an employee's complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation.◦ http://www.eeoc.gov/policy/docs/guid
ance-inquiries.html
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Physical Testing: ◦ Documentation is sufficient if it: (1) describes the nature, severity, and
duration of the employee's impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee's ability to perform the activity or activities; and,
(2) substantiates why the requested reasonable accommodation is needed.
◦ http://www.eeoc.gov/policy/docs/guidance-inquiries.html
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Physical Testing: ◦ Medical waiver: Employers that require
physical agility or physical fitness tests may ask an employee to have a physician certify whether s/he can safely perform the test. ◦ In this situation, however, the employer is
entitled to obtain only a note simply stating that the employee can safely perform the test or, alternatively, an explanation of the reason(s) why the employee cannot perform the test.◦ http://www.eeoc.gov/policy/docs/guidance-
inquiries.html
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Physical Testing: ◦ Medical waiver: An employer may not
obtain the employee's complete medical records or information about any conditions that do not affect the employee's ability to perform the physical agility or physical fitness test safely.◦ http://www.eeoc.gov/policy/docs/guidance
-inquiries.html
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Cognitive tests assess reasoning, memory, perceptual speed and accuracy, and skills in arithmetic and reading comprehension, as well as knowledge of a particular function or job;
Personality tests and integrity tests assess the degree to which a person has certain traits or dispositions (e.g., dependability, cooperativeness, safety) or aim to predict the likelihood that a person will engage in certain conduct (e.g., theft, absenteeism);
English proficiency tests determine English fluency.
http://www.eeoc.gov/policy/docs/factemployment_procedures.html
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Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. http://www.eeoc.gov/policy/docs/factemployment_procedures.ht
ml
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The test or selection procedure must be job-related and its results appropriate for the employer’s purpose.
While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under the EEOC’s Uniform Guidelines on Employee Selection Procedures. ◦ http://www.eeoc.gov/policy/docs/factemployment_procedures.
html◦ http://www.uniformguidelines.com/uniformguidelines.html
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If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure.
For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group. ◦ http://www.eeoc.gov/policy/docs/factemployment_procedure
s.html◦ http://www.uniformguidelines.com/uniformguidelines.html
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To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly. ◦ http://www.eeoc.gov/policy/docs/factemployment_procedures
.html◦ http://www.uniformguidelines.com/uniformguidelines.html
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Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes.
A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored. ◦ http://www.eeoc.gov/policy/docs/factemployment_procedures.ht
ml◦ http://www.uniformguidelines.com/uniformguidelines.html
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Interview questions to ask:◦ Previous work history (including
why he or she left or is considering leaving his or her current or former employer), ◦ Education, training and skill level
(but only to the extent of education, training or skill level reasonably related to the position), and
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Interview questions to ask:◦ Motivation to work for the district and
career goals (including whether the applicant is available for/willing to work overtime).
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Interview questions must avoid seeking information relating to the characteristics protected by state and federal law, such as sex, race and age. To avoid claims of unlawful discrimination:◦ The district should not ask for an
applicant’s age or birth date;◦ The district should not ask for the name of
the applicant’s spouse, spouse’s place of work or maiden name, or for any other information that would require an applicant to disclose his or her marital status.
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Interview questions must avoid seeking information relating to the characteristics protected by state and federal law, such as sex, race and age. To avoid claims of unlawful discrimination:◦ The district should not ask about an applicant’s
medical or accident history, physical abilities or limitations, history of worker’s compensation claims or history of sick or family and medical leave usage.
◦ The district should not ask an applicant about his or her country of citizenship.
◦ The district should not ask whether the applicant is pregnant, has children or intends to have children.
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Interview questions must avoid: Religion◦ Questions that require an applicant to reveal his/her
religion (or non-religion) are illegal. ◦ Particularly where the need for weekend work is sporadic
or uncertain, the district should try to avoid inquiring as to whether an applicant is available to work on Saturday or Sunday because that question could require an applicant to disclose his or her membership in a certain religious group, National Guard, or military reserves. ◦ If work on Saturday or Sunday is part of the regular
schedule of the position, the district should indicate the requirements and also state that it will make a reasonable effort to accommodate the needs of its employees.
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Interview questions must avoid ◦ Use of Lawful Products: The district should not ask an
applicant whether he or she needs a “smoke break” or
whether he or she would like to join the interview team for drinks at a local establishment after completing the “formalities” of the interview.
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Interview questions must avoid:◦ Personal Financial History:
The district should not inquire as to an applicant’s credit or bankruptcy history.
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◦ Interview Questions to Avoid or Be Very Cautious with: Arrest and Conviction Although the district may inquire as to whether
an applicant is subject to any pending criminal charges, the district should not inquire as to an applicant’s prior arrest records.
Employers may inquire into prior convictions. Usually, arrest and conviction matters are
initially disclosed in the context of a formal background check or self-disclosure statement, rather than being first-identified during the main employment interview.
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◦ Interview Questions to Avoid or Be Very Cautious with: Arrest and Conviction The district is prohibited from summarily
rejecting an applicant on the basis of pending criminal charges if the pending charges do notsubstantially relate to the circumstances of the job.
The district may consider pending charges that substantially relate to the circumstances of the job as a reason to disqualify an applicant.
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School districts are not required by law to perform criminal background checks on prospective or current school district employees. Please see https://docs.legis.wisconsin.gov/document/statutes/50.065 for caregiver law coverage.
Department of Public Instruction (DPI) does perform criminal background checks on individuals who seek to be licensed as teachers in the State of Wisconsin, at the time the individual first seeks licensure, but not support staff.
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Authorization for the Criminal Background Check from the Applicant
Review traffic records for applicants who are required to drive district vehicles or transport pupils.
See prior discussion on employment discrimination protections and nexus between criminal record and employment decisions.
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Authorization for the Credit Report Check from the Applicant as authorized under FCRA as defined below.
Federal Fair Credit Reporting Act (FCRA). ◦ The FCRA is a federal statute that
regulates consumer reporting agencies and limits the purposes for obtaining consumer reports.
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Federal Fair Credit Reporting Act (FCRA). ◦ The FCRA applies to employers when they
request a "consumer report" or an "investigative consumer report" in order to evaluate an applicant for employment or an employee for promotion, reassignment or retention.
◦ FCRA applies to a much broader spectrum of reports than just "credit reports," including those that contain absolutely no credit-related information.
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Federal Fair Credit Reporting Act (FCRA). ◦ An employer may obtain a consumer credit
report for an "employment purpose." ◦ The term "employment purpose" means a
report used for the purpose of evaluating a consumer for employment, promotion, reassignment, or retention as an employee.
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Federal Fair Credit Reporting Act (FCRA). ◦ Securing a consumer credit report from a
consumer reporting agency to make a decision regarding hiring would constitute obtaining the report for an "employment purpose."
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Federal Fair Credit Reporting Act (FCRA) – Consumer Reporting Agency ◦ The term "consumer reporting agency" means
any person who, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.
◦ State agencies that provide criminal record information or a driving record to employers are not consumer reporting agencies.
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Federal Fair Credit Reporting Act (FCRA) - Disclosure: An employer may not request or procure a
consumer report concerning any consumer, whether applicant or employee, unless the employer provides the consumer a clear and conspicuous disclosure in writing that a consumer report may be obtained for employment purposes;
The disclosure is in a document that consists solely of the disclosure; and the consumer provides written authorization for obtaining the consumer report.
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Federal Fair Credit Reporting Act (FCRA) – Summary of Rights Furthermore, if the employer uses information
from the report to deny an application for employment, the employer must provide the employee with A Summary of Your Rights Under the Fair Credit Reporting Act and information regarding the company that supplied the report, the nature and scope of the investigation, and the right to dispute the accuracy of the report.
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Release: Some districts create a separate document on which an “authorize and release statement” signed by the applicant: (1) allows the district to contact the applicant’s
references to verify the truthfulness of the information provided on the application,
(2) authorizes the applicant’s references to respond to the district’s questions, and
(3) releases and holds harmless the district and those who provide information from any possible defamation claims and resulting liability.
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Verification: Reference checks should verify the information a candidate submitted in his or her application materials, supplement any information gaps and address any reservations the administrator may have about the candidate’s ability to perform the job.
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Former Employer: If the reference check is with a former employer, the administrator should ask the former employer if it would hire the applicant again if given the opportunity to do so.
These references checks should be detailed, completed on an approved form, focus on the applicant’s ability to perform the job and also include a reference check from the candidate’s current or most recent supervisor.
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Wis. Stat.§ 895.487, Provides that an employer who, on the request of an employee or a prospective employer of the employee, provides a reference to that prospective employer is presumed to be acting in good faith.
This presumption can only be overcome by clear and convincing evidence that the employer knowingly provided false information in the reference; that the employer made the reference maliciously; or that the employer made the reference in a manner that violates the prohibitions against discrimination under the Wisconsin Fair Employment Act.
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Pre-Employment, Post-Offer Drug Testing: ◦ If a district requires pre-employment drug testing, it should
do so only after adopting a drug-testing policy that has been reviewed with the district’s legal counsel to ensure that the testing does not violate: the Fourth Amendment’s restriction on unreasonable searches and seizures; an applicant’s right to privacy, the Americans with Disabilities Act, or the Genetic Information Nondiscrimination Act.
◦ School districts that own their own or lease school buses or assign employees to operate motor vehicles which require a commercial driver's license must adopt an alcohol and drug testing policy and procedures to correspond with the Omnibus Transportation Employee Testing Act (OTETA) and its implementing regulations (which will involve both post-offer and post-employment drug testing for these employees).
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Pre-Employment, Post-Offer Drug Testing: ◦ Moreover, once any such policy has been adopted, the
district must ensure that the policy is enforced consistently and only upon those to which it has extended a conditional offer of employment. ◦ The District should not require any pre-employment
drug screening to any applicants it has not actually given a conditional offer of employment. ◦ Finally, the district must secure the results of any drug
test and not disclose this information to the public or any non-essential board members or administrators.
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Attorney General Opinion: ◦ “It is my opinion that a pre-
employment drug testing program most likely would be upheld by the courts in situations where public safety and security create a strong governmental interest in the integrity of an employee's character and physical and mental faculties, and where the circumstances of collection are least intrusive.” 76 Op. Att'y Gen. 257, 261 (1987)
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Anti-Nepotism Policies: ◦ Common law: The general rule is that a
public official may not participate in decisions concerning issues in which he or she has a direct pecuniary interest.◦ Wisconsin Criminal law: Prohibits a public
officer or public employee, acting in his or her official capacity, from participating in the making of a contract in which the officer or employee has a private pecuniary interest and from performing discretionary functions pertaining to the contract. Wis. Stats. 946.13
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Anti-Nepotism Policies: ◦ Wisconsin Criminal law: It is also a
crime for a public official or employee, in his or her private capacity, to negotiate, bid for, or enter into a contract with the school district when the public official or employee has a direct or indirect private pecuniary interest in the contract. Wis. Stats. 946.13.
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Anti-Nepotism Policies: ◦ Wisconsin Code of Ethics:◦ Prohibits local public officials from using
their public position to obtain financial gain or anything of substantial value for their private benefit or for their immediate family. ◦ The personal gain prohibited can be
anything of value, which means any money or property, favor, service, payment, advance, forbearance, loan or promise of future employment. Wis. Stats. 19.59
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Anti-Nepotism Policies: Wisconsin Government Accountability Board Guideline
“Nepotism involving relatives other than a spouse or legal dependent, although not specifically prohibited by the Ethics Code, should be avoided. The Board recommends that a public official neither (1) hire or promote as an employee of the state or of a local government, nor (2) advocate the state's or a local government's employment or promotion of, nor (3) exercise jurisdiction, supervision or direction over a person to whom he or she is related as a parent, grandparent, child, grandchild, brother, sister, parent-in-law, grandparent-in-law, brother-in-law, sister-in-law, uncle, aunt, niece, nephew or spouse.”http://gab.wi.gov/sites/default/files/guideline/24/1233_nepotism_pdf_17976.pdf
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Anti-Nepotism Policies: ◦ Marital Status Discrimination:◦ State law specifically prohibits
discrimination based on the employee's marital status, it provides a specific exception that permits board policies prohibiting an individual from obtaining a position in the school district where the individual would be directly supervised by his or her spouse.
◦ Such policies are justified by eliminating employment relationships that may result in conflicts of interest between an employee and a supervisor spouse WIS. STAT. § 111.345.
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Incompatibility of Office: Bars a person from holding two offices
where: One office is superior to another such that
the duties exercised under each might conflict with the other; or
Where the nature and duties of two offices are such that public policy considerations bar one person from discharging the duties of both. Ottradovev v. City of Green Bay, 118 Wis. 2d 393, 396; 347 N.W.2d 614 (Ct. App. 1984).
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Section 19.36(7), Wis. Stats.: Requires disclosure of the identity of “final candidates” in certain circumstances.
Subject to various refinements according to the opinions set forth below:◦ 81 Wis.Op. Atty General 37 (May 6, 1993).◦ Office of the Attorney General, Informal Opinion to Shana Lewis
(January 17, 2008). Use your application form to allow requests for
confidentiality until the final candidate stage. More Information can be found at:◦ http://www.wasb.org/websites/legal/File/legal-
comments/C200808.pdf
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Four very important things: Have a very clear understanding of who has the
authority to extend a final offer of employment.
Ensure the any offer of employment remains expressly contingent and revocable until you are 100% sure that all contingencies have been satisfied. (Do not inadvertently extend a binding offer of employment until all contingencies are 100% satisfied.)
Do not create a contract when you do not intend for the position to be covered by a contract.
Make sure that the candidate’s expectations match your processes.
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Reporting: School districts are required to send information to the
Wisconsin Department of Workforce Development (DWD) regarding: (See §103.05, Wis. Stats.)
New employees: Employers must report all employees who reside or work in the State of Wisconsin to whom the employer anticipates paying earnings. Employees must be reported even if they work only one day and are terminated (prior to the employer fulfilling the new hire reporting requirement).
http://dwd.wisconsin.gov/uinh/
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Reporting: School districts are required to send information to the
Wisconsin Department of Workforce Development (DWD) regarding: See §103.05, Wis. Stats.
Re-hires or Re-called employees: Employers must report re-hires, or employees who return to work after being laid off, furloughed, separated, granted a leave without pay, or terminated from employment after 90 days. Employers must also report any employee who remains on the payroll during a break in service or gap in pay, and then returns to work after 90 days. This includes teachers, substitutes, seasonal workers, etc.
http://dwd.wisconsin.gov/uinh/
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Explain law to potential retirees and new hires – refer the retiree to the Department of Employee Trust Funds.
Do not verbally or in writing engage in any conversations prior to retirement or during minimum break in service periods with the employee about re-hiring.
Provide new hires with rehired annuitant form ET-2319http://etf.wi.gov/publications/et2319.pdf Ask new hires to fill out a verification form Check ETF database to verify participation Consult ETF’s website and/or call ETF’s employer
hotline with questions
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Further potential implications arise if the rehire is hired by the same employer :
Is the employee receiving a non-elective post-employment 403(b) benefit from the same employer?
Is the employee receiving health insurance from the same employer?
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Verification - An employer should take precautions to avoid “over-documentation” which refers to, but is not limited to, the following situations in which the employer:◦ Requests more documents than required by law to complete the
Form I-9 process;◦ Rejects valid documents presented by an employee and instead
requests specific documents preferred by the employer; or◦ Requests an employee to present work authorization documents
more often than required.◦ Source: (Benjamin Kurten, Form I-9: Verifying Employment
Eligibility - Can I Go Too Far? 85 WI Lawyer, 2012).
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Reporting: School districts are not required to send information to the
Wisconsin Department of Workforce Development (DWD) regarding personnel contracted through a temporary agency: See §103.05, Wis. Stats.
Temporary employees: Temporary agencies are responsible for reporting any employee whom they hire to report for an assignment. Employees need to be reported only once; they do not need to be re-reported each time they report to a new client. They do need to be reported as a re-hire if the worker has a break in service or gap in wages.
http://dwd.wisconsin.gov/uinh/
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Eligibility to Work Verification: The board must make a good faith effort to verify the
identity of new hires and their eligibility to work in the United States. 8 U.S.C. § 1324a(b)(1).
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Verification - An employer should take precautions to avoid “over-documentation” which refers to, but is not limited to, the following situations in which the employer:◦ Requests more documents than required by law to complete the
Form I-9 process;◦ Rejects valid documents presented by an employee and instead
requests specific documents preferred by the employer; or◦ Requests an employee to present work authorization documents
more often than required.◦ Source: (Benjamin Kurten, Form I-9: Verifying Employment
Eligibility - Can I Go Too Far? 85 WI Lawyer, 2012).
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Grooming and Dress Requirements: ◦ The board is required by Wisconsin law to advise new employees of
any grooming or dress requirements and should ensure that the new employee receives a copy of the position description, staff handbook and any other relevant employment policies and rules. WIS. STAT. § 103.14.
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Provide a Copy of the Position Description
Provide a Copy of the Employee Handbook◦ Obtain acknowledgement of receipt and responsibility to read/follow
◦ The board is required by Wisconsin law to advise new employees of any grooming or dress requirements WIS. STAT. § 103.14.
Arrange Appropriate Orientation/Overview Meetings◦ Employment Benefits / Payroll
◦ Evaluation Processes
Arrange Initial Required Training (e.g., training on reporting of child abuse and neglect)
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Bob Butler has been a WASB staff counsel since 1990. He is also, along with attorney Barry Forbes, the Association’s co-associate executive director. Bob directly represents more than 40 school districts in Wisconsin on employment, human resources and school law matters. Bob also provides membership services, including general legal information, to all school districts that are members of WASB.
He graduated from the University of Wisconsin Law School and received his undergraduate degree in industrial and labor relations from Cornell University. Bob can be contacted at:
[email protected] (phone)1-608-512-1703 (direct phone)1-608-257-8386 (fax)