By Rick Mullen, Maintenance Sales News Associate Editor
Opening her presentation titled, “Hiring the Productive and Legal Way,” human resources consultant and employee relations expert Wendy Christie, told an audience of cleaning industry professionals there are many areas of discussion that are off-limits during the hiring process.
So-called “protected” areas include age, disability, equal pay/compensation, genetic information, harassment, national origin, pregnancy, race/color, religion, sex and sexual harassment, Christie said. She also advised companies find out if their states have added other subjects to the list.
“For example, Arizona added smoking,” Christie said. “My state, Montana, has added transgender. So, you need to know where you stand within your state.
“Other areas that are legal hotspots are workers’ compensation claims. You can’t discuss workers’ comp claims with an employee. Also, when conducting a reference check, you can’t ask about previous workers’ comp claims.”
Formerly known as workmen’s compensation, the name has been changed to workers’ comp to make it gender-neutral.
There are also rules concerning a person’s appearance and dress codes.
“A company cannot reject an applicant because of his/her appearance, if it is typical of his/her religion or culture,” Christie said.
However, a company can establish a dress code to meet necessary standards, such as those involving safety.
She offered the following example involving a nationally known wholesale company: “The company established a very strict dress code policy. Employees had to have all tattoos covered and all piercings removed. As a result, one employee sued saying she belonged to the ‘church of piercing,’ which meant she didn’t have to remove her piercings.”
The case went to court, which found the “church of piercing” did not meet the criteria of a legitimate religion as it pertained to the company’s dress code.
At-Will Employment States
Every state in the United States, except Montana, is an at-will employment state.
“At-will states follow the premise that you can terminate an employee, as long as it is not discriminatory, or an employee can quit for any reason,” Christi said. “Exceptions to a state’s at-will policy are written or implied contracts. Written contracts are found in employee handbooks, offer letters, performance reviews or applications. So, you want to be careful what you have in writing.
“An implied contract would be anything that you say in an interview. When you are interviewing, you don’t want to say to an applicant something like, ‘You are by far the best candidate for this job,’ or, ‘As long as you want to work here, we will be more than happy to keep you employed.’ When you say something like that, you are making an implied contract.”
Ban The Box States
“Ban the Box” is the name of an American campaign by advocates for ex-offenders, aimed at removing the check box from applications that asks if applicants have a criminal record. Ban the Box states view the question as discriminatory.
“My company, EmployerEsource.com (EES), provides offer letters. If a client is in a Ban the Box state, we have a section in the offer letter that says the position is contingent on the applicant passing a background check. In other words, when you offer an applicant the position, then you can conduct a background check. You can’t do it beforehand.”
A typical offer-letter provides a brief overview of the position and company and includes specific job details, such as start date, salary, work schedule and benefits.
Both the interviewer and the applicant are often nervous when they sit down for the actual interview. One way to ameliorate nervousness and tension is to engage in “small talk,” Christie said. However, the person conducting the interview must remain aware of legal practices, even when engaged in small talk.
“Small talk can be effective in calming nerves, i.e., ‘How was your drive in?’ ‘How was the weather?’ ‘How was your Sunday?’” Christie said. “If the applicant were to answer, ‘I spent the whole day in church on Sunday,’ the interviewer must be aware that religion is a protected subject, and he/she cannot further pursue that subject.
“Just because an applicant brings something up that is protected, that is not an open door for discussion. A lot of people think, ‘Well, he/she brought it up, so I’m going to talk about it. If the interviewer says something like, ‘That is quite an accent you have. Where does that come from?’ that would be considered discriminatory as natural origin is a protected area. So, be very careful. You still have to follow all the rules, even though you are just getting to know each other.”
“You have to remember to keep it legal when advertising a job,” Christie said.
She offered some tips on the correct language to use when advertising a position:
■ Avoid salesman, say salesperson;
■ College student designates age, say part-time worker;
■ Avoid handyman, say general repair person;
■ Avoid married couple, say a two-person job;
■ Avoid waiter, say wait staff; and,
■ Avoid young, say energetic.
“Traditionally, the main vehicle for recruiting has been newspapers,” Christie said.
Another recruiting avenue is the use of job services.
“We have found we get mostly unemployment fillers as applicants from job services,” Christie said. “These are people who are applying just in order to get their unemployment benefits.”
Unemployment fillers are often not interested in being interviewed for the position for which they are applying.
“In one instance, involving unemployment filler applicants, I had eight interviews lined up back-to-back, and only two people showed up,” Christie said.
More effective platforms on which to advertise for jobs include Craigslist, Facebook, a company’s web page, LinkedIn, InDeed.com and Monster.com, Christie said.
“When hiring employees, you need to think about it like you are selling your business to a client,” Christie said. “You really want to sell why a person should work at your company.”
Another effective strategy is to include a photograph when posting a job on such platforms as Facebook and Craigslist, Christie said.
“A photo will attract attention,” she said. “However, you have to think about what you are posting.”
For example, one of Christie’s clients, a recycling company, submitted some photos of the exterior of the company for an ad.
“The photos were taken in the spring when, in Montana, it can be very muddy,” Christie said. “So, they took the pictures in the mud, and they were awful. I advised the company to take photos in the summer, as nobody was going to want to work for them outside in the slush. So, think about the pictures you plan to post to present a positive image.”
If a company does not have photos of its own pertinent to the job being posted, there are generic stock photos available that can be downloaded online.
Jobs can also be advertised at such college-related events as move-in day and career day.
“In addition, you can use magnet signs on the sides of your vehicles that say something like, ‘Hiring now. Contact us at (phone number),’” Christie said. “It often works to place help-wanted ads and fliers in Chamber of Commerce newsletters, at gyms, and at booths at festivals, rodeos, etc. Expand your advertising as much as possible to get the word out.
“Another great way to advertise your business is to offer a bonus to employees for referring an applicant who gets hired. Employee referral programs work very well.”
Highlighting the benefits a company offers employees, such as health insurance, product discounts, flexible hours, family environment, etc., is another way to sell a business to potential applicants, Christie said.
“Think about asking your employees, ‘Why do you work here? What is it about this job that you like? What brought you to work for us?’” Christie said. “Maybe it is the location. Maybe it is the hours. So, find out what it is, and then sell your business that way. It is one of the best ways to recruit employees.”
“One of my favorite suggestions to our clients is to help them figure out how to expand their applications,” Christie said. “While most are pretty standard, you can put anything you want on an application. If you think of something you can ask that might give you an idea whether an applicant is going to be a good fit for your company, add it to your application.
“Example additions are: ‘An essential function of the cleaning position job is being on your feet six to eight hours a day. Are you able to perform this job with or without reasonable accommodations? How did you find out about your last job? Are you currently engaged in any home cleaning services at this time?’ You can ask that if you are concerned with competition, or if you are concerned an applicant might try to steal your clients.
“So, you can customize your applications. Try to think outside the box and cut your hiring time down a little bit.”
Some Do’s And Don’ts
“You cannot ask an applicant, ‘Have you ever been convicted of a felony?’” Christie said. “What is best to say is, ‘If you are applying for a position, you will be required to pass a criminal background check, Department of Motor Vehicles background check or credit check.
“Questions to avoid include, ‘What is your maiden name?’ ‘Do you go by Ms. or Mrs.’ ‘That is an interesting last name, is it Irish?’ Those are all considered discriminatory, so just ask, ‘What is your name?’”
More Examples Of Do’s And Don’ts
■ Avoid: What is your date of birth? How old are you?
Ask: Are you over the age of 16/18?
■ Avoid: When did you graduate from high school? College? The answers would indicate age, which is protected.
Ask: Did you graduate from high school? College?;
■ Avoid: Are you an American citizen? Where were you born? What is your nationality?
Ask: Are you eligible to work in the United States?;
■ Avoid: What language did you speak growing up?
Ask: Do you speak any language other than English that could be applied to this position or company?
Perhaps you need an interpreter for a staff of predominately Spanish speaking workers;
■ Avoid: Which religious holidays do you observe?
Ask: The position requires employees to work holidays and weekends. Will that be a problem?; and,
■ Avoid: Have you ever been arrested?
Ask: This position requires employees to pass a background check (credit check, DMV check) upon receiving a conditional offer of employment. Would you sign a release for this check?
“You must have an applicant sign a fair credit reporting letter before conducting a background check,” Christie said.
The art of interviewing, she said, is listening.
“You never learn anything if you do all the talking,” Christie added.
She alluded to the 80/20 rule — that is spending 80 percent of the time listening and 20 percent talking.
She also mentioned that studies have shown most people lie during interviews. The challenge is to flush out whether an applicant is telling little “white” lies or “big” lies. In that same vein, studies indicate a large number of applicants have reported bogus degrees.
Christie offered other hiring tips, including:
■ While interviewing, notice facial reactions and body language, which will tell a lot about the applicant;
■ Finding out why a person took a particular action is often more relevant than the action taken can give a window into an applicant’s judgement and motivation;
■ If someone says something that is offensive, don’t act surprised or show disapproval. Try to remain neutral, as the applicant may continue on to tell you something you need to know;
■ Pauses during an interview are effective, giving applicants the opportunity to elaborate; and,
■ Ask open-ended questions that elicit elaboration, rather than “yes” and “no’ responses — “To what extent were you successful at your last job?” “To what extent did you enjoy the experience at your former company?”
Christie advised not to be “too direct” when asking questions. Some examples are:
■ Too direct: Why did you leave that job?
More appropriate: How did you happen to leave that job?
■ Too direct: Why do you think you had trouble with your boss?
More appropriate: To what do you attribute the minor difficulties you experienced with your supervisor?
■ Too direct: Do you lack self-confidence?
More appropriate: To what extent is self-confidence a trait you might want to improve?
■ Too direct: Are you overly sensitive?
More appropriate: How might you be overly sensitive to criticism?
Remember to keep the hiring process legal. Do not ask questions about subjects that are protected by law, Christie said.
Christie has more than 20 years experience in the area of employee relations. As a human resources consultant and owner of EES, she has helped many companies develop legally compliant employee handbooks and documentation.