Effective Employee Selection Processes in Oregon School Districts
Fundamentals and legal considerations for designing and implementing employee selection processes in Oregon school districts, including compliance with CBA provisions, non-discrimination laws, and stakeholder involvement. Explore impact on hiring decisions and preferences for in-district candidates.
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Designing and Implementing Legal and Effective EMPLOYEE SELECTION PROCESSES Brian and Nancy Hungerford, The Hungerford Law Firm
Youre only as good as your staff! WORKSHOP OBJECTIVES: To understand the many legal requirements for a staff selection process. To assess and revise your district s selection processes to yield the highest quality new staff.
Fundamentals for hiring processes in Oregon school districts Staff selection is generally decentralized, so training all managers is important. Staff selection usually involves the participation of co-workers and other stakeholders, whose roles and involvement needs to be clearly spelled out.
OVERVIEW: Legal Issues Compliance with CBA provisions Non-discrimination provisions Restrictions on use of some information Criminal records, social media? Medical info, prior WC claims, absenteeism? Restrictions on selection processes used
CBA Provisions re: Selection Process "Current BU members shall be given first consideration for positions if they are qualified." "At least two inside applicants will be interviewed if qualified. - "Most senior inside candidate will be selected if qualified."
CBA Provisions re: Selection Process Impact on the Hiring Decision Strict seniority or sufficient ability provisions = As long as the more senior employee meets the minimum qualifications, they get the job. Relative ability provisions = Seniority is a tie-breaker if ability is deemed equivalent. Hybrid provisions = Both seniority and qualifications are equal components in the overall equation.
CBA Provisions re: Selection Process Impact on the Hiring Process Preference will be given to in-district candidates In-district are entitled to an interview Right to notice in writing for reasons why the in-district candidate was not selected Internal posting period prior to external posting
CBA Provisions re: Selection Process Language impacting the hiring decision: When two or more applicants are equally qualified as determined by the District, the job will be given to a current District employee over an outside applicant or between two or more current employees, the most senior. Qualifications are determined on many criteria, including, but not limited to the interview, job posting, job description, resume, training, work experience, and evaluations.
CBA Provisions re: Selection Process Language impacting the hiring process: All current unit members who are qualified and who apply for a vacancy shall be interviewed unless they have been interviewed for another position at the same school with the same principal within the previous school year. No outside applicant will be hired until current qualified employees are considered.
Your Districts CBA and policy restrictions re: Selection Process Classified CBA? Licensed CBA? Any District policy?
Non-discrimination Requirements Disability that does not keep employee from performing essential requirements of job Race/National Origin Sex/ sexual orientation/ Sexual identity Religion Family/Marital Status Arrest record/criminal conviction unrelated to duties of position? Military Duty Obligations Age (Federal: 40+; State 18+) Previous WC or unemployment claims
Non-discrimination Requirements: Race/Color Also prohibited under state law Race/Color Discrimination Prohibited by Title VII of Civil Rights Act of 1964, 42 U.S.C. 2000e Do not request info that discloses or tends to disclose applicant s race If necessary to gather info for affirmative action purposes, obtain info on tear-off sheets. No request for race- related info over the phone, ever.
Non-discrimination Requirements: Gender Also prohibited under state law, along with discrimination on basis of sexual orientation (including transgender) Gender Discrimination and Pregnancy Discrimination Prohibited by Title VII , Pregnancy Discrimination Act of 1978 Do not request info aboutapplicant s sex unless a BFOQ, essential to a particular position; do not ask pre- employment questions of one sex but not the other. Don t ask questions re: marital status, pregnancy, future family plans, name/ address of spouse before hire. Ask after hire for legitimate business purpose (insurance) Canask about whether applicant can work the required hours, schedule.
Non-discrimination Requirements: Marital Status Prohibited under state law, ORS 659. Discrimination based on marital and family status No federal prohibition
Non-discrimination Requirements: National Origin Also prohibited under state law National origin Discrimination Prohibited by Title VII Do not request info aboutapplicant s national origin, birthplace, citizenship. Can ask re: languages candidate speaks, reads, or writes. Don t askabout English fluency unless necessary to perform job effectively. Don t base decision on accent unless it seriously interferes w/ job performance Canrequire worker to speak English only if need to ensure safe or efficient operation of the business and rule is adopted for nondiscriminatory reasons.
Non-discrimination Requirements: Citizenship Also prohibited under state law under national origin Discrimination based on citizenship, immigration status Prohibited by Immigration Reform & Control Act of 12986 Cannotdiscriminate in hiring, firing, recruitment based on citizenship or immigration status unless required to do so by law, reg, or gov t contract. Also prohibits employer preference for temp visa holders or undocumented workers. Can ask: Legally authorized to work in U.S.? Requires completion after hire of I-9 form and reviewing documents showing identity and employment authorization
Non-discrimination Requirements: Age Also prohibited under state law (for those 18 and older) Age Discrimination Prohibited by Age Discrimination in Employment Act, 29 U.S.C. 621 Do not request info aboutapplicant s national origin. Do not include age preferences or limits except BFOQ; Don t advertise for recent college graduates ADEA protects those 40 and older. Questions about age, DOB will be closely scrutinized. Gather any info after employment for lawful business purposes. Canask: Are you at least 18? How long would you be looking to stay with this job? Why are you interested in this position?
Non-discrimination Requirements: Religion Also prohibited under state law Religious Discrimination Prohibited by Title VII Do not request info aboutapplicant s religion or church affiliation, days of worship, religious holidays, or reference from pastor/priest/imam Public schools must accommodate religious practices unless employer can demonstrate undue hardship would result. Canask if applicant can meet days/ hours of position, can comply with dress and working environment requirements
Non-discrimination Requirements: Disability Also prohibited under state law Disability Discrimination Prohibited by Americans with Disabilities Act, Section 504 Generally can t ask disability-related questions until after condition job offer; can ask about accommodations because of obvious/ disclosed disability or accommodation May ask about need for accommodation to perform specific job duty, but not nature, severity of disability. Can t ask about WC claims. Can t ask medical questions, to take a medical exam, days sick on previous job before job offer; may condition job offer on exam if same for employees in same job.
Non-discrimination Requirements: Disability (Continued) Also prohibited under state law Disability Discrimination Prohibited by Americans with Disabilities Act, Section 504 Mayask about current illegal use of drugs. Maynot ask about medications prescribed by doctor. Asking about legal marijuana use?
Non-discrimination Requirements: Military service, discharge State requires annual release for 15 paid days (11 work days) of training for guard members Don t discriminate based on service obligations (state, national guard) Requirements for leave Don talways reject candidates with less than honorable discharges. Maybe related to disability, minority status, education Preferential hiring based on military service?
Non-discrimination Requirements: Other Bases? Also prohibited under state law: Genetic Information No questions based on genetic info or history Prohibited by Genetic Info Non- Discrimination Act Unless job-related, don t ask about height and weight requirements Prohibited by EEOC (screen out women and minorities) Must be shown essential to job performance Don t ask for financial info, home ownership, length of residency EEOC: Do not apply differently, based on age, sex, color If using credit info, must notify in advance, give chanceto dispute
Non-discrimination Requirements: Other Bases? Also prohibited under state constitution No questions based on political activity, affiliation Generally protected by 1st Amendment Don t ask about prior complaints (BOLI, EEOC, WC) Prohibited under non-retaliation provisions Don t ask for financial info, home ownership, length of residence EEOC: Do not apply differently, based on age, sex, color
Non-discrimination Requirements: Use of Criminal History Information Portland employers (but not school districts) have stricter Ban the Box ordinance (City Code City Chapter 23.10 EEOCGuidance in 2012-13 gave recommendations Oregon passed Ban the Box law effective 1/1/16 ORS659A.360 EEOC will look at disparate impact; suggested consideration of seriousness of offense, age at incident, recent conduct and job history Don t require criminal history on job application; don t consider criminal history before interview stage. Doesn t apply to volunteers Don t ask about criminal history before conditional offer; good faith effort to determine if specific offense or conductjob-related, consistent with business necessity
Non-discrimination Requirements: Use of Criminal History (Cont.) Employee, contractor or volunteer not required to submit fingerprints until offered employment, a contract ORS 326.603 requires criminal background checks for: School district and private school may not employ or contract with: Schooldistrict or private school employee or contractor with direct, unsupervised student contact Newly hired employees (but not if checked in Persons convicted of crime listed in ORS 342.143(3) Persons who knowingly made false statement on criminal history form Requirement of background tests for volunteers with direct, unsupervised contract with students mandatory for public schools, optional for private schools.
Non-discrimination Requirements: Use of Criminal History (Cont.) Does ORS 659A.360 apply to Oregon school districts? Statute excludes employers who are required by law to consider criminal history. Who does ORS 326.603(3) apply to? Districts? The Department of Education? OSBA says it does not apply. BOLI says it might.
Principal says to screening committee: SCENARIO #1 Luckily we have a number of strong women applicants since we need to have supervision in the girls locker room each period of the day. A middle school employs a male and female PE teacher. The female teacher resigns and the District advertises for a replacement. VIOLATION?
Bona Fide Occupational Qualification (BFOQ) Employer who seeks to "justify discrimination under the BFOQ defense must prove by a preponderance of the evidence: 1) that the job qualification justifying the discrimination is reasonably necessary to the essence of its business; and 2) that [sex] is a legitimate proxy for the qualification because (a) it has a substantial basis for believing that all or nearly all [men] lack the qualification, or . . . (b) it is impossible or highly impractical to insure by individual testing that its employees will have the necessary qualifications for the job." Employer "must show a high correlation between [sex] and ability to perform job functions." Employer must show that "alternative approaches . . . are not viable. Anderson v. City and County of San Francisco, 9thCircuit 2014.
Principal says to HR: SCENARIO #2 I know we can t specify male Social Studies applicants, but we can t hope to attract a talented FB coach if we don t have a teaching position for him. The high school FB coach resigns but will stay on teaching staff; A female social studies teacher resigns at the same time your only HS teaching vacancy. OPTIONS?
Affirmative Action v. Non- discrimination In 1970 s ,Gov. Atiyeh administratively established Affirmative Action requirements for government employers, including school districts. Districts were required to establish AA plans, including goals and efforts to meet goals in hiring minorities and women. OAR 581-o22-1720 requires a standard school district to adopt policies addressing to affirmative action and equal employment opportunity.
Non-discrimination Policy Gresham-Barlow School District policy GBA: Equal employment opportunity and treatment shall be practiced by the district regardless of race, color, religion, sex, sexual orientation, national origin, marital status, age, veterans status, genetic information and disability if the employee, with or without reasonable accommodation , is able to perform the essential functions of the position.
Non-discrimination Policy (cont.) Gresham-Barlow School District policy GBA: Sexual orientation means an individual s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual s gender identity, appearance, expression or behavior differs from that traditionally associated within the individual s sex at birth. The district grants a preference in hiring and promotion to veterans and disabled veterans. A veteran is eligible to use the preference any time when applying for a position at any time after discharge or release from service in the Armed Forces of the United States.
Teachers in MS math department say: SCENARIO #3 We already have two math teachers with just 1-3 years teaching. We d like to select for interview just those candidates who have 5-10 years. All such applicants are white. During the past 10 years, your district has had a significant increase in the numbers of students of color, who now make up 60% of student body. What do you do now?
ADA Requirements Applicants who can perform the essential requirements of the job, with or without reasonable accommodation, cannot be discriminated against because of a disability unless: The accommodation would change the essential nature of the job. The accommodation would impose an undue burden on the school district.
Scenario #4 The most promising applicant arrives for her interview in a wheelchair. Several staff involved in the interviews are immediately concerned because recess duty is performed by all elementary teachers. After all the prepared questions are asked . . . and teaching methods and have a lot of relevant experience, but what how can you do recess duty? The Vice-Principal says: Typically, all elementary teachers do recess duty. How would you go about performing this duty of keeping students safe on the playground? Teacher A says: You know a lot about our curriculum
General Rule: All information gathering must be job related Don t circle information on application papers that may suggest a non-job-related focus (circling high school graduation date, church-related activities) Don t gather/share information not relevant to job duties from internet, social media Don t ask about marital status, plans for a family, immigration status, political or religious affiliation, etc.
Dont /Do You may ask: Don t make inappropriate small talk: What experiences did you have prior to beginning your college program that interested you in becoming a teacher? What experiences or traiing have you had teaching or working with students of color? That s an unusual last name. Where is your family from?
Dont /Do You may ask: Don t inquire about family, marital status issues We hold evening parent conferences twice a year and also schedule many IEP meetings at the end of the school day, sometimes running until 5 p.m. Will you be able to participate in those job duties? Have you found child care for your pre- school-aged children?
Dont/Do Don t ask: What may you ask? We have a very conservative community, not very accepting of different life styles. How will you fit in?
Dont/Do Don t inquire (on application, interview): What can you say? All candidates offered a position will be required to pass a criminal background test as required by Oregon law. This position as head secretary requires periodic collection and deposit of large sums of cash. Is there any reason why you cannot meet this requirement of the job? Have you ever been arrested for a crime? Have you ever been convicted of a crime?
Avoiding claims for negligent hiring Should the employer have known of an employee s unfitness for a position? Was the employer s pre-employment investigation into the candidate s background adequate? Section 1983 claims: Did the employer display deliberate indifference to foreseeable harm ( gross negligence )?
School District did reference check with prior supervisor who reported good job performance but failed to disclose job was in a prison work program. School District did not know that custodian had pled guilty to manslaughter in death of a girl friend 12 years earlier. Parents of teacher filed a tort claim notice after her death. Negligent hiring? School District hires a night custodian, who strikes up a friendship with a teacher who arrives early each morning. They become a couple. One night, at her home, he stabs her with a scissors and kills her.
Require post-offer, pre- hire Must consistently require for all candidates offered a particular type of position. Should be job-related. Use a consistent process with approved lab/clinic Drug Testing? Physical exams?
Test results come back positive, with an extremely high count, but also indicate use of opioids. SCENARIO #4 The chosen candidate for a custodial position says: I can tell you that I ll test positive for marijuana, but I have never used on the job or anytime within 8 hours of start time. What do you do now?
Criteria for an Effective Selection Process 1. Results in the hire of high quality candidates 2. Meets legal and CBA requirements 3. 4. 5. 6.
Selection Process Overview A. Developing an accurate, attractive vacancy announcement that meets the specific needs. B. Recruiting/Soliciting candidates to obtain multiple qualified candidates. C. Gathering information for use in selection. Screening process: Finding the likely finalists. Interviewing/simulation/ Reference checking D. Making the offer E. Post-offer, pre-hire
Developing the Vacancy Announcement Building/ Job Areas of Emphasis Vacancy Announcement description Site Needs
Risky Practices Risky Practices Changing a published job posting after receiving applications or interviewing candidates or rewriting a job posting so that appears to favor a specific person. Not following hiring procedures or deadlines (e.g., accepting an application after the deadline and then offering the position to the one person who applied late). Failing to advertise internally first, if required by CBA. Identifying a qualification or skill as required but then treating it as preferred (and vice versa).
Recruiting: Where, when, how? Affirmative action considerations Time/ Recruiting Plan Special Needs Budget
Risky Practices Risky Practices Word of mouth recruiting only may result in disparate impact claims if workforce is currently disproportionate to larger applicant pool. However, widespread recruiting is not required for every position, unless CBA requires.
