As the national and local economies begin to gain new momentum, an increasing number of Oklahoma companies are starting to hire once again after months of waiting for the economy to recover. According to Manpower Inc.’s recent Employment Outlook Survey, 22 percent of employers in the Tulsa metro area and 13 percent of Oklahoma City area employers are planning to hire more workers in the second quarter of this year. Nationally, two-thirds of states are expecting employers within their states to significantly increase staffing levels.
During McAfee & Taft’s free one-hour EmployerLINC webinar, “Now Hiring,” employment attorneys Kathy Neal and Charlie Plumb offer a practical refresher course for employers on best hiring practices, including a discussion about employment laws and regulations that may have changed since the last time they were hiring. Kelly Beyer, Tulsa branch manager for Manpower Inc., also joins the panel to discuss hiring trends and issues employers should consider as they begin hiring. Topics include:
- What’s happening with hiring, generally
- Seeking candidates and applicants
- Application content
- Interview and selection process
(Originally broadcast March 24, 2011)
The following are answers to some of the most frequently asked questions during the webinar broadcast. Please note that these answers are being provided for information of clients and friends of McAfee & Taft and do not provide legal advice and are not intended to create a lawyer-client relationship. In addition, we are not able to provide answers to fact-specific inquiries. Readers should not act upon the information provided below without seeking professional counsel.
Q: Are employers required to use applications? We are a professional firm and don’t use applications, even for the administrative staff.
A: If in the future you are challenged by a governmental agency or an individual on your hiring decisions, it will important to have a record of applicants, their backgrounds and experiences. For that reason, it is advisable to maintain applications, even if you only accept them when you have a vacancy.
Q: My company does not accept unsolicited resumés or applications. Does that policy need to be in writing or posted on a company website? Or can we simply tell would-be applicants who stop by in person or mail in their resumés/ applications about this policy?
A: You should have a specific, written policy stating that unsolicited resumés and applications are not accepted. Further, you should apply that policy consistently.
Q: How long should applications be kept on file?
A: You should maintain copies of your applications for at least three years. In Oklahoma, we recommend keeping them for five years just to be on the safe side.
Q: The State of Oklahoma requires a specific application for Certified Nurse Aides working in long-term care. The application asks for date of birth, gender and ethnicity information. How do we comply with that state requirement and still protect ourselves from potential discrimination claims?
A: If the employer is required by statute to obtain date of birth, gender and ethnicity at the application stage, that information should be maintained separately from the general application and not accessed or used in the selection process.
Q: I work for a bank. Can we refuse to hire someone if they have filed for bankruptcy within the last seven years?
A: The federal bankruptcy code prohibits a governmental employer from denying employment to, terminating the employment of, or discriminating against a person who has filed bankruptcy. Private employers are prohibited from terminating the employment of, or discriminating against, a person who has filed bankruptcy. The “denying employment to” language is missing in the statute with respect to private employers. A recent Fifth Circuit Court of Appeals case found that the bankruptcy statute does not prohibit private employers from discriminating against prospective employees based on their bankruptcy status. A private banking institution has a better argument for not hiring a person who has filed bankruptcy than many other private employers, but employers should exercise care if the position to be filled has nothing to do with cash or financial operations of the business and a person who has filed bankruptcy is automatically excluded from consideration. Additionally, a facially neutral policy of denying employment to persons who have filed bankruptcy may adversely impact one or more minority groups.
Q: Is it legal to reject an applicant due to a felony conviction?
A: Assuming the felony conviction occurred within the last seven years and the employer can explain a job-related reason for rejecting the applicant based upon the felony conviction, the employer can do so.
Q: How should a deferred sentence be treated?
A: Unless the deferral is revoked and a conviction substituted, a deferred sentence should not be considered as a conviction.
Q: If an applicant has had a conviction expunged, can he/she lawfully mark “no” on the application question that asks about prior convictions? Also, does an expungement remove that conviction from a national background check and/or the OSBI record?
A: Expungement in Oklahoma means the “sealing of criminal records.” They are sealed to the public but not to law enforcement agencies. Additionally, Oklahoma has a statute providing that an applicant for employment who has had a conviction expunged does not have to provide information with respect to a sealed criminal record and “may state that no such action has occurred.” An employer may not deny the application “solely because of the applicant’s refusal to disclose arrest and criminal records information” that have been sealed. 22 O.S. §19(F). Under this type of expungement, the OSBI record will contain only the identifying information (name, address, etc.).
There is a second way to expunge a criminal record in Oklahoma, and it is called a “991c” expungement of a deferred sentence, if all conditions of the deferred sentence have met. The OSBI arrest record for a “991c” expungement will reflect “plead not guilty, case dismissed.” We’re not sure what you mean by a “national background check.”
Q: During the interview process, may I ask the following question: “Attendance is important for this position. Would that be a problem for you?”
A: You are entitled to advise the employee of the time and attendance requirements, which are essential functions, and confirm with them they can comply with those requirements.
Q: What is the best practice for asking an applicant about his/her status in the military reserves?
A: You should not ask questions about Reserve or National Guard service. As stated in the answer above, you are entitled to advise the employee of the time and attendance requirements, which are essential functions, and confirm with them they can comply with those requirements.
Q: Can I legally inquire as to the military status of an applicant’s spouse?
A: You should not inquire about an applicant’s military status or a spouse’s military status.
Q: You recommended that we are not to ask verbally, “Where did you go to high school?” We have educational qualifications on our application that includes high school diploma and date, as well as college education. We have both technical professional positions (and must document education for regulatory reasons) as well as clerking and secretarial positions (for which we think we need high school graduates). So can we still ask this information on our application?
A: The better question is: “Do you have a high school degree or GED?” “Do you have a degree from a college, university, or institution of higher learning?”
Q: Can applicants be pared down to final candidates before pre-tests are given?
A: You can administer any test other than medical tests before you make the employment offer. Medical tests may not be administered unless a conditional offer of employment has been made.
Q: When conducting a background check, can we legally check an applicant’s workers’ comp history? Also, can we refuse to hire someone if they appear to have a pattern of filing workers’ comp claims?
A: It is unlawful and inadvisable for an Oklahoma employer to refuse to hire an individual based upon a pattern of workers’ compensation claims.
Q: I work for a law enforcement agency, and we utilize a polygraph during the hiring process. Can we ask questions about the applicant’s medical history and workers’ comp history as part of the polygraph exam?
A: Medical history and workers’ compensation questions are treated as medical issues. Accordingly, those questions should not be asked unless and until an individual has received a conditional offer of employment.
Q: What is the best way to handle a situation where an applicant applies for a position involving high volumes of communication and his or her spoken voice is very difficult to understand?
A: We assume you mean that the applicant’s spoken voice is difficult to understand because of an accent and not because he or she is soft-spoken. If so, this presents a very difficult situation. On the one hand, the position appears to require the ability to communicate (and be understood), but excluding an applicant because of an accent that makes him or her difficult to understand begins to look like national origin discrimination. Plus, what may be difficult for you to understand may not be difficult for others to understand. If the ability to handle “high volumes of communication” is truly an essential function of the position and that is clearly reflected in your job descriptions, then you may refuse to hire the applicant. Just understand that he or she may immediately head to the closest office of the EEOC and file a charge of discrimination.
Q: I have candidates who offer all kinds of very personal information during the interview process. How should I handle this unsolicited information?
A: When a candidate offers unsolicited personal information, you should deflect by simply saying you wish to focus on questions and issues that relate to their ability to effectively perform the job.
Q: What are “blacklisting” statutes?
A: Oklahoma’s Blacklisting Statute – 40 O.S. § 172 – prohibits an employer from blacklisting a former employee for the purpose of preventing that former employee from securing other employment.
Q: Our company has limited HR resources. As a result, an HR representative isn’t able to be present at all interviews. We do, however, train the selection committee on interviewing do’s and don’ts. Is that sufficient?
A: There is no requirement that an HR person be present at all interviews. However, we suggest that a person on the selection committee be designated as the person who takes notes.
Q: What if an applicant is very persistent and insistent on specifically asking why he or she was not selected for the position?
A: You have no obligation to provide specific information. “We do not believe you were the best qualified applicant for the job” or “Your qualifications did not best fit the requirements of the position” are the best way to handle the disappointed applicant.
Q: Should information provided on a medical enrollment application be kept separate from the employee’s personnel file?
A: Medical enrollment applications should be treated as medical records and should be segregated from other general personnel records with limited access.
Q: Should a doctor’s note for an absence – or any other leave of absence form – be maintained separately from the employee’s personnel file?
A: Doctors’ notes for an absence are likewise considered medical records and should be maintained separately from other personnel files with limited access. The same is the case with any leave of absence form.