INTERVIEWING & SCREENING CANDIDATES WHAT YOU DON’T KNOW CAN HURT YOU

Anna Jarecki - Principal, AccuCheck, Inc. BA, FMSD, FCRA-C/NAPBSCathy Braatz - Principal, AccuCheck, Inc. BA, FMSD, FCRA-C /NAPBS

NAVIGATING THROUGH UNCERTAIN TIMES

Do you have a formal Interviewing & Screening Process and Policy?Procedural guidelines: what you can/can’t ask and when you can ask? Process and procedures indicating what to look for and where to look f?

Who is in charge?

CredentialingMedical StaffHuman ResourcesMedical BoardRecruitment Department

• What is considered part of the interview and/or screening?

• What “laws” pertain to the process?

• What role can social media play in the screening process?

• What are best practice recommendations?

INTERVIEWS & SCREENINGwhat you don’t know can hurt you

INTERVIEWS/SCREENING …everything counts!

• Reviewing (& rejecting) CVs • Social Media perusing• Interviews • Email chats• Texts• Referencing• Board Discussions• Background Check• Credentialing• Re-Credentialing

• Everything action related to selecting the next candidate - information reviewed, revealed, spoken, written, heard, printed, shared, discussed….etc. - throughout the process - is considered a form of candidate screening

INTERVIEWING/SCREENING & FEDERAL LAWS

Title VII of the Civil Rights Act of 1964Protect civil liberties; Prevent DiscriminationEEOC (Equal Employment Opportunities Commission) - Enforcement

Age Discrimination in Employment Act of 1967Prohibits discrimination based on age

Sections 501 and 505 of the Rehabilitation Act of 1973Specific to disabled federal workers

Americans with Disabilities Act of 1990Prohibits discrimination based on disability for all employers

Civil Rights Act of 1991Provides monetary damages in cases of intentional employment discrimination.

Genetic Information Nondiscrimination Act (GINA) 2008Prohibit the use of genetic information in health insurance and employment

…ON THE HORIZON

Equal Employment for All ActMassachusetts Senator Elizabeth Warren proposed the Updated Federal bill banning the use of Credit Reports for Pre-Employment Screening Except for purposes related to: • National Security Clearance• FDIC Clearance (Federal Deposit Insurance Clearance)• State or Local Governmental Agency Positions• Financial Institutions – supervisors, managers, execs• Or when otherwise required by law

Currently, 8 states have laws restricting the use of Credit Reports to Screen Employees:  California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington17 other states have multiple bills pending addressing the issue (2013)

EEOC FEDERAL AGENCY

SUPPORT & ENFORCEMENT

Equal Employment Opportunity Commission Enforcement Agency for Title VII related issues / litigation2012 “GUIDANCE” – EEOC

Criminal Records & Disparate Impact Employer Knowledge of Criminal Past May Adversely Affect Outcome for Candidates (protected classes)

Pepsi and other large organizations sued Before you Deny based on Criminal record, Apply the “Green” Test (Green vs Missouri Pacific Railroad Company)

• Nature or gravity of the offense or conduct • Time elapsed • Nature of the job sought or held

FCRAFair Credit Reporting Act

• Enacted in 1970• Establish Fair & Accurate Credit Reporting• Amended 1996 , 2003, 2010

• 1996: Include Consumer Reports (background checks)Authorizations / Disclosures required Credit Authorization separate from General Authorization

• 2003: Expand definitions • Consumer Reports and Investigative Consumer Reports:

• what can and cannot be included • Consumer Reporting Agency (CRA)

• Obligations & Restrictions

• 2010: Consumer Financial Protection Bureau (CFPB) • As of 01/01/2013, “CFPB” must appear on Authorizations for Release of

Information

FCRA SPECIFICS and variations on a theme….

PER FCRA: the following cannot be reported post 7 years: Civil suits, civil judgments, and records of arrest, from date of entry Paid tax liens Accounts placed for collection Any other negative information *Bankruptcies after 10 years.Criminal (Felony & Misdemeanor) Convictions have no time limit

EXCEPTION: the above reporting restrictions do not apply to jobs with an annual salary of $75,000 or more a year. (FCRA §605(b)(3).• Many states have “exceptions” variations of the “exception” clause,

which lower the annual salary cap

FCRA REQUISITES

• Provide the candidate a Disclosure statement • Disclose to applicant that “screening” will be performed

• Reference Checking, Social Media and other internet searches constitute Screening, as does a background check”

• Disclose the content (sources) • Disclose any agent/s obtaining information on behalf of employer

• Obtain the applicant’s written consent:• Authorization form

• The disclosure and authorization can be included in one form, but must otherwise stand alone.

• Disclosure cannot be part of the job application, handbook or any other document.

• *Forever / Blanket Authorizations – may be used throughout association with organization

• Examples included

CONSUMER FINANCIAL PROTECTION BUREAU

• 2013 Consumer Financial Protection Bureau (CFPB)

Bureau created to provide consumers with more protection. “CFPB” language must be present on:

• Authorizations (General & Credit) • Agreements & Contracts• Pre-Adverse, Adverse Action Letters• Summary of Consumer Rights

FEDERAL LAW & RESCINDING OFFER / DENYING EMPLOYMENT

Always follow 2 step process:

Step 1: Send a Pre-Adverse action notice  • Copy of the report • Summary of Consumer Rights Under the FCRA• Provide time for a Response or Explanation

• (the industry consensus for is 5 days) 

•

• Step 2 : Send Adverse Action Notice

• This written notice must contain:• CRA’s name, address and phone number• Statement that the CRA did not make the adverse decision, rather the

employer did, • Notice that the applicant/employee has the right to dispute the accuracy or

completeness of the information that the report provided.

SCREENING/INTERVIEWING & STATE LAWS

States: Create “MINI-ME” Versions of FCRA Use of Credit ReportsConsideration of Criminal Records relative to suitability for employment

Type / Nature : Misdemeanor, Marijuana (CA), Petty Offense (CO) Disposition / Adjudication – Diversion, First Offender, Expungement,

etc. Arrests Misdemeanors: Massachusetts – 5 years

•Which state law applies to a consumer report? •Employer’s State of Incorporation? •Location of Potential Work Site? •Residential Location of Candidate?

STATE LAWS VARY

• FL: allows persons with “sealed” criminal history to lawfully deny arrest record

• GA: grants discharge & exoneration to those who obtain first offender status

• IL: Civil rights violation for employer to use arrest or conviction data if expunged or sealed

• NY: Article 23-A prohibits private employers and public agencies from denying or taking adverse action upon an application for employment or license based on the existence of a prior criminal conviction or “a finding of lack of ‘good moral character’” as a result of prior criminal conviction(s) unless one of the following exceptions applies:• there is a direct relationship between the criminal offenses and the specific license or

employment; or • granting or continuing the license or employment would involve an unreasonable risk to

property, safety, or welfare of specific individuals or the general public

CALIFORNIA….

Under California law, it is unlawful to inquire about any of the following:a. Arrests or detentions that did not result in convictionb. Referral to, and participation in, any pretrial or post-trialdiversion programc. Marijuana-related convictions that are more than twoyears oldd. Convictions for which the record has been judiciallyordered sealed, expunged or statutorily eradicated (e.g., juvenile offense records)e. Misdemeanor convictions for which probation has beensuccessfully completed or otherwise discharged and the case has been judicially dismissed.

Include a checkbox on Disclosure and/or Authorization that allows an individual to request a copy of any investigative consumer report or consumer credit report (to comply with California law, Vermont, and other states)

…NATIONWIDE CRIMINAL RECORD SEARCHES

• “Nationwide” • At best, a misnomer …at worse, a potential disaster

• Misrepresentation • Scope

• Not all states provide data• Not all jurisdictions within reporting states provide data• Not all reporting jurisdictions report all “reportable data”

• Accuracy• Data is not uploaded consistently, uniformly • Data is not updated, purged or screened for errors

• Reliability• Legal ramifications regarding use

• FCRA Stipulations – • CRA must exercise reasonable procedures to ensure accuracy of data reported

• Any “hits” in NW Criminal search must be “re-verified” at jurisdictional level• Common name…enormous outlay time and dollars

• Accurate Charges & Dispositions / final outcome• Expungement• Deferred Adjudication• Non conviction

INTERVIEWS / SCREENING & BAN THE BOX LAWS

• Statewide & Local (municipalities) • Illegal to pose the question “have you ever been

convicted of a crime?”• Illegal to ask about and/or consider convictions prior to a

conditional offer of employment

• When can you (legally) ask about criminal convictions ? • When can you (legally) check for criminal records?

“WHEN” YOU CAN ASK VARIES….

• After initial screening of applicants:• Chicago, IL• Massachusetts• Minnesota• Seattle, WA

• At first interview:• Buffalo, NY• Oregon• Rhode Island

• After first interview• Montgomery County, NJ• Philadelphia, PA• Prince George’s County, MD• San Francisco, CA• Rochester, MN

• After conditional offer:• Baltimore, MD• Columbia District• Hawaii• New York City

STATES WITH BAN THE BOX LAWS

OVER 50 CITIES/COUNTIES BAN THE BOX(NATIONAL EMPLOYMENT LAW PROJECT 2014 )

APPLICATION OF STATE(S) LAW

Which state’s laws will apply?

Candidate’s current residence?

Where the candidate may work?

Corporate location?

State of incorporation for facility?

BEHAVIORAL INTERVIEWING

Past behavior can predict future performanceCan you describe the last time you went over the top for a patient?

How have you used your influence with others to demonstrate or show leadership?

Can you talk about your experience with a bad outcome with a patient and how you dealt with the family?

Tell me about a conflict you had with another physician and how you handled it.

Learn to recognize symptoms of: Disruptive Behavior

Peer References: Go “three deep”

Social Media Screening

SOCIAL MEDIABACKGROUND CHECKS & THE LAW

• Applicant Cyber Identity Check• Value vs Risk

• Profile collected using automation• Independent third party – legal liability • Accuracy of information must be demonstrated• Relevance of information must be demonstrated

• FTC: Social Media report must follow same FCRA rules as standard “background check” (06/2011)

•Provide Full Disclosure & Obtain Full Consent listing all sources including social media sources•Reasonable Procedures to assure maximum possible accuracy and relevancy of information •Pre-Adverse/Adverse Action Notification applies

Inap

prop

riate

Pho

to

Inap

prop

riate

Com

men

t

Drinking

Drugs

Dispa

rage

Pre

viou

s Em

pl...

Poor

com

mun

icat

ion

skills

Discr

imin

ator

y Rem

ark

Lie

abou

t Qua

lifica

tions

Revea

led

Confid

entia

l Inf

o

neve

r rej

ecte

d0

2

4

6

8

10

12

14

Do you use social networking sites to vet candidates? 91% YESHave you ever rejected a candidate based research? 69% YES

INTERNET AND SOCIAL MEDIA SCREENING

1. Too Much Information 2. Too Little Information3. Fact or Fiction4. Privacy Issues5. Password Concerns6. After (work) Hours7. Public Information / Privacy Disclaimers8. Protected Information / FCRA

Risky Business……

TMI: TOO MUCH INFORMATION

• Social Media Could Reveal: Race Creed Nationality Ancestry Medical Condition Disability Marital Status Sexual Preference Pregnancy

• Viewing may be hazardous to your corporate recruiting health: • Increase Exposure to “Failure to Hire” lawsuits based upon EEOC

or Discrimination Claims

TLI: TOO LITTLE INFORMATION

Have you been diligent?Is there readily available information that would contraindicate hiring, such as evidence of:

Disruptive BehaviorsDiscriminatory BehaviorsDeviant Behaviors

Catch 22Negligent Hiring (TLI) vs Failure to Hire (TMI)

Concerns

If a simple web search would reveal that a candidate was “inappropriate” for a position and the candidate (now-employee) causes harm to another that is considered to have been “preventable” based upon “common or readily accessible” knowledge, the victim’s attorney could argue that the employer failed to exercise reasonable care…and did not perform due diligence. Negligent Hiring or Respondeat Superior (let the master answer) Lawsuit

Conversely:

If you do not hire based upon Social Media derived information, a candidate may claim that the information derived may be non-job related, irrelevant, protected information and ….Discrimination lawsuit

SOCIAL MEDIA: FACT OR FICTION

Authenticity and Credibility

Facebook follies and photosWriter’s intent ≠ Reader’s impression

LinkedinAuthor’s Identity, creditability

Hearsay – tags, posts, blogsAuthor’s Identity, creditability

Absolute identity match Same name, similar age…. Is it your candidate?

Cyber-slammingAnonymous Slander

Cyber Identity TheftMasqueraders

SOCIAL MEDIA: TERMS OF USE

Is everything online “fair game” ?• Privacy settings are clearly stated• Terms of Use: users agree not to use for “commercial

purposes”….• Legally, is there an expectation of privacy?

Is Pre-Texting legal? Pretending to be someone else or someone you are not to gain

access

What if a fake online identity is used to penetrate a social network site?

SOCIAL MEDIA: AFTER (WORK) HOURS CONDUCT

Rights of Candidates (illegal discrimination) vs.

Rights of Employer

• Broader discretion applied if behavior would• Damage a company • Hurt business interests• Inconsistent with business needs

SOCIAL MEDIA: PASSWORDS

• Can employer (current or potential) ask for a social media password? • 2009 Bozeman Montana• City government check requested user name/passwords

of employees…

• April 2012, Maryland enacted the Nation's first social media password protection or privacy law

• 2015 9 states—California, Illinois, Michigan, New Jersey, New Mexico, Utah, Maryland, Montana and Delaware

• 23 others pending•

CAVEAT EMPTOR…Ultimately, there are no guarantees

Top Ten Lies on Resumes, CVs & LinkedIn• Stretching work dates• Inflating past accomplishments and skills• Enhancing job titles and responsibilities• Exaggerating educational background• Inventing periods of "self-employment" to cover up

unemployment• Omitting past employment• Faking credentials• Falsifying reasons for leaving prior employment• Providing false references

• How are they getting away with it? It’s easy!

35

36

37

RESULTS GUARANTEED FOR $195 OR YOUR MONEY BACK!

38

39

40

Nationwide Criminal Record Checks: avoid the hassle?

• Nationwide – not really! • At best, a misnomer …at worse, a potential disaster

• Misrepresentation • Scope

• Not all states provide data• Not all jurisdictions within reporting states provide data• Not all reporting jurisdictions report all “reportable data”

• Accuracy• Data is not uploaded consistently, uniformly • Data is not updated, purged or screened for errors

• Reliability• Legal ramifications regarding use

• FCRA Stipulations – • CRA must exercise reasonable procedures to ensure accuracy of data reported

• Any “hits” in NW Criminal search must be “re-verified” at jurisdictional level• Common name…enormous outlay time and dollars

• Accurate Charges & Dispositions / final outcome• Expungement• Deferred Adjudication• Non conviction

INTERVIEWING & SCREENING

Criteria

• Consistent• Compliant• Legally

Defensible

Methods & Documentation

• Consistent• Compliant• Legally

Defensible

Scope & SourcesInternal & External

• Consistent• Compliant• Legally

Defensible

What you don’t know can hurt you… on many levels: • Organization – financial, reputation, community standing• Clients – patients’ health, loyalty, trust• You – reputation, credibility

Check out your policies and proceduresMake sure process and forms are current, compliant and comprehensive