Preventing Discrimination
Employers are required to comply with laws that protect applicants and employees from discrimination. This includes making employment decisions based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). In addition, the Iowa Civil Rights Act includes sexual orientation and gender identity as protected classes.
Making employment decisions based on any of these protected classes has no place in any workplace, and it will likely find your city inside a courtroom rather quickly. First and foremost, hire the best employees without any attention to factors that have no impact on job performance.
A good overview of ways to prevent discrimination in the hiring process can be found in the Successful Interviewing Guide available from Iowa Workforce Development. This publication covers many aspects of the hiring process, including appropriate background checks and interview questions.
Job Description
Part of any job recruitment is to inform potential applicants about the requirements of the job and the related working conditions. Job descriptions provide a written set of expectations and should outline the chain of command and skills needed to be successful in a position. There are also legal reasons to have accurate job descriptions. This would include overtime exemption status as determined by the Fair Labor Standards Act. If exempt from overtime rules, the job description should support this designation. The job description is also an important place to outline what are the essential and non-essential tasks of a position. This distinction is helpful in making accommodations related to the Americans with Disabilities Act and the Americans with Disabilities Act Amendments Act of 2008.
Job Application
To comply with the state veterans’ preference law cities are required to create and use applications that include an inquiry into the applicant’s military service. The Successful Interviewing Guide includes a sample job application that meets this requirement. In addition, the application should not include inquires that specifically discover membership in a protected class.
Advertising a Position
There is no legal requirement to advertise any open position. However, the veterans’ preference law requires cities to post a public notice of the application deadline to fill a job 10 days prior to the deadline. The posting requirement is the same as for posting agendas in that the notice is to be posted in a prominent place which is easily accessible to the public and clearly designated for that purpose. The fact that a city has advertised for the position in a newspaper or other publication does not fulfill the posting obligation of the statute. While posting is the legal requirement, advertising open positions in local or regional newspapers is still the best practice to secure a large pool of qualified applicants.
Interviews
The key to a successful interview is preparation, organization and planning. Take time to prepare solid, job-related questions, and then ask these questions consistently to all applicants to ensure equal treatment during the interview. Organize your questions into a logical sequence. Listen attentively to the answers generated by your questions. Take detailed notes; candidate impressions will often be lost after multiple interviews.
Veterans’ Preference
Federal and state laws forbid discriminating against veterans in any employment decisions. In addition, the state veterans’ preference law states veterans are entitled to preference over other applicants of “no greater qualifications” with regard to city positions.
Drug Testing
In order to engage in pre-employment drug or alcohol testing, an employer must have a written policy in place. That policy has to be available to employees and prospective employees and the policy needs to outline the uniform disciplinary or rehabilitative actions an employer will take following a positive test. Several types of employees are subject to federal requirements for pre-employment and random drug testing; this would include those driving certain types of heavy equipment and thus required to maintain a Commercial Driver License and all employees of gas pipeline utilities. The law permits testing of other city job applicants, such a policy needs to be in place prior to the hiring process and consistently applied.
Credit Reports
For employees that handle transactions or have access to financial accounts, a credit history report can be an important screening tool. There are very specific regulations regarding the use of credit reports for employment screenings, so it is important to understand these issues before making decisions. Part of the process will be to get the written permission of the applicant or employee to do this type of background check. If you want the authorization to allow you to get background reports throughout the person’s employment, make sure you say so clearly in any notice or policy.
For most credit reviews a city will use an outside vendor to perform the background check. Reputable companies should be able to navigate the city through compliance with the Fair Credit Reporting Act. This federal law can impact how certain types of information can be used in hiring decisions and at times requires notice that certain types of searches will be performed, and if that information is used in the hiring decision it requires disclosure to the applicant. Applicants should then be questioned on any inconsistencies that are discovered and given the opportunity to address issues that might have acceptable explanations, such as recordkeeping errors or identity theft.
Criminal Background Checks
Information obtained in criminal background checks can be used to prevent a city from hiring individuals that could present safety risks to fellow employees. These types of checks can also discover convictions for crimes such as embezzlement or other work related criminal convictions that could indicate the type of employee they would be if hired. Arrest records should not be used and any policy to review criminal convictions should be based on specific positions, be a job related concern and be consistent and non-discriminatory.
References
When checking references it is important to realize that an employer may not ask questions of previous employers, family members or other sources that cannot be directly asked to the applicant. The best reference check is to let the reference do most of the talking; questions should be open-ended enough to determine the strengths of the individual seeking employment. An important question to ask any job related reference is if they would rehire the candidate if given the chance.
Pre-Employment Physical
A post-job offer pre-employment physical benefits both the employer and employee. Performed by your designated medical professional and guided by your updated job description, the exam will ensure the prospective employee is physically capable of performing the essential job functions. A Functional Capacity Evaluation is a set of tests, practices and observations that are combined to determine the ability of the evaluated to function in a variety of circumstances based on the job description in an objective manner.
Other Post Offer Items
Federal law requires employers to verify an employee’s eligibility to work in the United States. Within three days of hire, Form I-9 needs to be completed. Employers do not need to submit Form I-9 to the federal government but are required to keep this document on file for three years after the date of hire or one year after the date of the employee’s termination, whichever is later. Employers can use information taken from the Form I-9 to electronically verify the employment eligibility of newly hired employees by registering with E-Verify.
Every employee must provide an employer with a tax withholding exemption certificate known as a Form W-4 on or before the date of employment. The employer must then submit Form W-4 to the Internal Revenue Service (IRS). For specific information, read the IRS’ Employer’s Tax Guide. Employers also need to report withholdings for state income tax purposes by using Form IA W-4 available from the Iowa Department of Revenue.
