Life Cycle of an Employee: Assessment, Selection, Onboarding

Polsinelli PC. In California, Polsinelli LLP
Life Cycle
Assessment/Selection/Onboarding

real challenges. real answers. sm
Previously on “Life Cycle” – Recruitment and
Talent Acquisition
We learned:
Why exactly are we hiring?
Importance of the job description
Compensation complications
Posting for the job
Recruiting do’s and don’ts
Effective resume screening

What We Will Cover Today
Employment Screening
Immigration Considerations
Protecting Your Intellectual Property
Arbitration and Dispute Resolution
Clauses
Employee Benefits Considerations

Employment Screening

Aptitude and Qualifications Testing
• Potential for Title VII / ADA / ADEA / GINA
Concerns
• EEOC v. Ford Motor Co. (2005)
• EEOC v. Dial Corp. (2005)
• EEOC v. Abercrombie & Fitch (2004)
– “Look Testing”
• State Law Requirements

Testing and the ADA
Employers cannot use qualification standards, tests, or other
criteria that screen out, or tend to screen out, candidates with
a disability, unless the criteria are job-related and a business
necessity. 42 U.S.C. § 12112(b)(3).
If criteria does screen out candidates with a disability, the
employer must show that the criteria (1) are a legitimate
measure for the subject job; (2) are related to the essential
functions of the subject job; and (3) cannot be met by a
disabled candidate with a reasonable accommodation.
A qualification standard may include the requirement that a
candidate not pose a “direct threat” to the health or safety of
others in the workplace. 42 U.S.C. § 12113(b).

Testing, ADA and Title VII
Employment tests must accurately reflect needed
skills for the job. 42 U.S.C. § 12112(b)(7).
Employment tests must be administered to eligible
candidates with disabilities in formats that do not
require the use of the candidates’ impaired skill(s).
29 C.F.R. § 1630.11.
Employment tests cannot be “designed, intended or
used to discriminate because of race, color, religion,
sex or national origin.” 42 U.S.C. § 2000e-2(h).

Testing, ADA and Title VII (cont’d)
• Pending Cases
• Test Questions:
⁻ “I sometimes get confused by my own thoughts
and feelings.”
⁻ “Over the course of the day, I can experience
many mood changes.”
⁻ “I am always happy.”

Medical Exams
Before Making a Job Offer:
• An employer cannot ask the candidate if she has a disability, though
an employer may ask about her ability to perform job-related
functions, provided that the questions are not phrased in terms of
disability. 42 U.S.C. § 12112(d)(2); 42 C.F.R. § 1630.13(a).
• If a candidate has a known disability that may interfere with her
performance of job functions, the candidate can be asked to
describe how these functions will be performed.
• If a known disability would not interfere with a candidate’s
performance of job functions, the employer can only ask her to
describe how she would perform those functions if it asks all
applicants for that position.

Medical Exams (cont’d)
After making a job offer, an employer may require a medical
exam of the candidate and condition employment on its
passage, but only if a medical exam is required of all
applicants and the results are kept confidential (42 U.S.C. §
12112(d)(3)).
However, a medical exam of an employee must be job-related
and justified by business necessity (however, voluntary
medical exams, such as for an employee health program, is
permitted). 42 U.S.C. § 12112(d)(4).
And don’t forget about state law requirements!

Drug and Alcohol Testing
Possible ADA Implications
EEOC v. Steel (2013)
State Law Requirements

Background Checks
The federal Fair Credit Reporting Act (“FCRA”)
applies to employers’ credit and/or criminal
background checks of employees and job
applicants if performed by a third party.
To comply with the FCRA before conducting such
checks:
1) The employer must first make a clear, accurate,
written disclosure (in a standalone document) of its
intent to obtain a consumer report on the individual
to that individual, and
2) The employer must obtain that individual’s written
permission (the individual can do so by signing and
returning the disclosure form).

Background Checks (cont’d)
Pre-Adverse Action Notification to Candidate
Must Provide Candidate with Notice of Rights under
FCRA
Must Give Candidate Reasonable Period to Review and
Correct Report Errors Before Acting (10 Days Accepted)
Must Then Provide Final FCRA Notice Informing
Candidate of Decision

The employer must then certify to the third-party
provider of the consumer report that it:
1) provided the standalone disclosure form to, and received
written permission from, the subject individual;
2) will comply with the FCRA regarding use of the report;
and
3) will not use the information in the report to violate any
equal employment opportunity laws.

Don’t forget state law requirements.
Potential Title VII Implications.
Check the Box Legislation.

Immigration Considerations

Sponsorship?
Candidate is worth the time and expense of sponsorship
Is there an employment visa category available?
Are there any obstacles that may interfere with
successful filing of an employment-based visa
Is there a visa type/ number available?
Do you have tangential issues such as export controls/itar?
Sponsorship requires planning
not always available, may not meet timing needs
Responsibilities must be understood
Example: salary requirements, maintaining Public Access
Files
Generally prospective employees will identify need for
sponsorship prior to hire
– Best Interests of all parties

IRCA Compliance - The Basics
It is illegal to knowingly hire or continue to
employ anyone not legally authorized to work in
the U.S.
Policies and Procedures must balance our
compliance queries to avoid discrimination
claims
We are limited in what we can ask prospective
employees during the hiring process

Offer Accepted – What now?
Form I-9
Meet the time deadlines for completing the
Form
By Day 1- Section 1
By Day 3- Section 2
The “Thursday Rule”
Original Documents
No “skyping”/Facetime
No extensions
Consistency is critical

E-Verify Compliance
E-Verify is voluntary
Federal Contract FAR Rule
State Mandates

Form I-9 Liability Can Be Expensive
FINES
$375 to $16,000 for Knowing Hire/Continuing
to employ violations
$110 to $1,100 for Substantive Uncorrected
Technical violations
DOJ, ICE DOL are involved in various
types of compliance

Staffing Companies & Immigration Compliance
Fairly simple:
Cannot use a shield
If you have knowledge of unlawful status of
contractors you are a “joint employer”
Review your agreements and add carefully
drafted immigration compliance language

Protecting Your Intellectual Property

Types of Intellectual Property
Copyright
Patent
Trade Secret

Uniform Trade Secrets Act
"Trade secret" means information, including a
formula, pattern, compilation, program, device,
method, technique, or process, that:
(i) derives independent economic value, actual or potential,
from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.

Contract Terms to Establish Ownership
Invention Rights and Assignment
Work-for-Hire
Prior Inventions
Third-Party Inventions

Contract Terms to Restrict Documents
Confidentiality/Non-Disclosure
Return of Company Property
Restrictive Covenants
No Conflicting Agreements and
Indemnification

Restrictive Covenants
Non-compete
Non-solicit

Scope of Restrictive Covenants
Time
Geographic area
Prohibited activities

Arbitration and Dispute Resolution

Goals of Internal Dispute
Resolution Procedures
Learn about and resolve issues early
Improve employee relationships
Improve employee satisfaction
Create possible defense to a dispute

Types of Procedures
Open Door Policy
Human Resources
Written Grievance
Ombudsman
Review Committee
Outside Mediator or Arbitrator

Keys to Internal Dispute Procedures
Explain the procedure
Require timely submission of disputes
Ensure that the people involved are
credible, neutral, and fair
Prohibit retaliation
Explain what the result may be

Goals of Arbitration Provisions
Avoid publicity of disputes
Avoid getting stuck in back-logged courts
Avoid juries
Avoid costly and protracted discovery
Avoid certain damages

Federal Arbitration Act
A written provision in . . . a contract
evidencing a transaction involving
commerce to settle by arbitration a
controversy thereafter arising out of such
contract or transaction . . . shall be valid,
irrevocable and enforceable.

Uniform Arbitration Act
An agreement contained in a record to
submit to arbitration any existing or
subsequent controversy arising between the
parties to the agreement is valid,
enforceable, and irrevocable except upon a
ground that exists at law or in equity for the
revocation of a contract.

Important Components of Arbitration
Provisions
Be sure to address:
types of claims covered
damages and other relief
payment of the arbitrator’s fees
rules and procedures
summary judgment, discovery, and rules of
evidence
type of award

Employee Benefits Considerations

Employee Benefits
Types of Benefits
– Retirement
– Bonus Arrangements
– LTIPs
– SERPs/deferred compensation plans
– Vacation
How accrued
– Holidays

Employee Benefits
Types of Plans (continued)
– Welfare Plans
Medical
Life
Disability (STD and LTD)
BTA
EAP
Cafeteria Plan

Employee Benefits
Handbook benefits description
– Retain right to change benefits
– Provide plan documents prevail
– General description
– Receipt

Employee Benefits
Benefit Plan enrollment
– Eligibility
– Election timing
– Beneficiary designation forms
Retirement plans
–Spousal Consent
Life insurance

Employee Benefits
Disclosure requirements
– SPD distribution
What constitutes
Timing
–90 days after coverage
–Consider providing at DOH
Electronic
Initial COBRA notice

Employee Benefits
Penalties for disclosure violations
– $110 per day
– Criminal
Up to 10 years
$100,000
$500,000 for companies

real challenges. real answers. smreal challenges. real answers. sm
Polsinelli provides this material for informational purposes only. The material
provided herein is general and is not intended to be legal advice. Nothing
herein should be relied upon or used without consulting a lawyer to consider
your specific circumstances, possible changes to applicable laws, rules and
regulations and other legal issues. Receipt of this material does not establish
an attorney-client relationship.
Polsinelli is very proud of the results we obtain for our clients, but you should
know that past results do not guarantee future results; that every case is
different and must be judged on its own merits; and that the choice of a lawyer
is an important decision and should not be based solely upon advertisements.
© 2015 Polsinelli PC. In California, Polsinelli LLP.
Polsinelli is a registered mark of Polsinelli PC

Life Cycle of an Employee: Assessment, Selection, Onboarding

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Life Cycle of an Employee: Assessment, Selection, Onboarding