top legal pitfalls in the recruiting & onboarding stages [webcast part 1]
TRANSCRIPT
Top Legal Pitfalls in the Recruiting & Onboarding Stages
©2013 LinkedIn Corporation. All Rights Reserved.
(Part 1: Pre-Employment)
2
Top Legal Pitfalls Hiring Managers Make Along the Employment Lifecycle
Sheeva J. Ghassemi-Vanni Senior Associate Fenwick & West linkedin.com/in/sheevaghassemi
3
q Employment lifecycle overview
q Screening
q Interviewing
q Selection process
q Background checks
q Onboarding
Topic Overview Top Legal Pitfalls in the Recruiting and Onboarding Stages (Part 1 of 3)
Pre-employment Termination
Employment
1
2
3 Screening
Interviewing
Selection process
Background checks
Onboarding
Assessing termination risks
Performance management
Failure to performance manage
Tips and tools
Employee classification: Exempt vs. non-exempt
Worker classification: Contractor vs. employee, and interns
Performance management tips
Next Weds: Aug 5th @ 11am PT
Tues: Aug 11th @ 11am PT Today
Discrimination
Race Color
National origin
Citizenship
Ancestry
Religion
Gender Pregnancy
Sexual orientation
Disability
Age (40+)
Military service
Marital status
“Associa-tion”
Law prohibits discrimination in hiring (and other employment decisions) based on protected characteristics, including:
Tip
Can’t make decisions in the screening, interviewing, consideration, or selection process based on such characteristics
Pre-interview sources of information
Resumes / Applications • What do they reveal / infer about protected
status?
Pre-interview sources of information
Internet / Social Media • What are the dos and don’ts for internet
searches, especially social media? - LinkedIn - Facebook - Twitter - Etc.
• Too much information! • Can unwittingly learn of protected
characteristics, especially if candidate is “friends” with people in the organization
Tip
Stay focused on sites that summarize work/employment history, not personal life
Example
I was born in an Asian and hardworking family who migrated from Vietnam. It has been instilled in me to work hard and as a result, I’ve been promoted over 4 times at my current company. As a 21 year old marketing professional, I thrive in a youthful and fast-paced company. I have been recognized as a top performer for achieving record high marketing contributions, customer retention, and customer service satisfaction. Having no children, I’m able to travel at any time for business. I have received many commendations for my professionalism, dedication, and customer service excellence.
What can I ask?
• Interviewers must not ask questions that reveal protected categories / information
• Interviewers must be adequately trained by what they can and can’t ask during interviews
Tip
Download list of sample interview questions from LinkedIn’s Hiring Toolbox at bit.ly/SMBhiringtoolbox
What topics are safe?
• Law prohibits any non-job-related inquiries that implicate protected status Safe topics: • Job skills • Experience Dangerous topics: • Anything that could reveal protected characteristics, even if seemingly
innocuous
Can I or can’t I?
TOPIC QUESTION Age When did you graduate from college?
Marital/Family Status Are you married? Do you have children?
Residence Do you own or rent?
Arrest/Criminal Record Have you ever been arrested?
Organizations/Activities What non-professional organizations do you belong to?
Name What is your maiden name?
Birthplace/Citizenship Where were you born? Where are your parents from?
Medical Condition Are you healthy?
• If candidate reveals information regarding protected category during interview, and company decides not to hire him/her, he/she could claim it was based on that information
• Must be able to objectively establish a non-discriminatory basis for
decision not to make offer (typically, based on comparison against other candidates)
Tip
Steer conversation back to job-related issues if candidate begins to reveal information regarding protected category
Tips: Things to look out for
q Job hopping
q Skill set that will not likely scale as position changes
q Hesitancy in providing references
q Inconsistencies with information shared on LinkedIn Profile, resume, and in interviews
q References from just peers vs. direct manager(s) and direct reports
• Must comply with federal (FCRA), state, and in some cases, local (e.g., San Francisco) law
• Engage reputable vendor
• “Hits” must be truly job related if relied upon to make hiring decisions
• Establish and consistently follow onboarding checklist
• Confirm that all documents have been signed, especially offer letter, PIIAA, and handbook acknowledgement
Tip
Download LinkedIn’s Onboarding in a Box for tips, templates, and more! http://bit.ly/Onboardingtoolbox
Align with candidate • Discuss clean exit from former employer with candidate, and clean
onboarding
Incorporate proper language in offer letter and/or PIIA • Employment with company does not violate any obligations to prior
employers • Employee has and will not bring over trade secrets or proprietary
information of former employers
Obligations to prior employers • Non-competes • Non-solicits • Inquire before, not after, offer is made
17
q Screening
q Interviewing
q Selection process
q Background checks
q Onboarding
Summary Top Legal Pitfalls in the Recruiting and Onboarding Stages (Part 1 of 3)
LinkedIn Talent Solutions offers a full suite of tools to help you find, attract, and hire top candidates. Contact us to learn more. Call
855-655-5653 or visit
linkd.in/1TMUc7Q
Fenwick & West provides comprehensive legal services to ground-breaking technology and life sciences companies at every stage of their lifecycle. We craft innovative, cost-effective and practical solutions, helping some of the world's most respected companies become and remain market leaders. Call
650-988-8500 or visit
Fenwick.com/employment
Disclaimers
*This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.