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NYC Bosses Can’t Ask Prospective New Hires This Sensitive Question

(Washington Post, with permission from Jena McGregor)

In a vote Wednesday, April 5, 2017, NYC approved legislation that will ban employers from asking job applicants about what they make in their current or past job and could have far-reaching consequences beyond the city as employers try to standardize their practices. It’s an idea that’s starting to spread: In passing the measure, New York City joins Massachusetts, Puerto Rico and the city of Philadelphia — where the local Chamber of Commerce filed a lawsuit against that measure Thursday — in banning the question from job interviews. More than 20 other city and state legislatures have introduced similar provisions.

The measure, aimed at tackling pay inequity, prohibits employers from asking the candidate’s current or former employers about salary, as well as querying public records for it, although applicants can volunteer the information if they choose. The city’s Public Advocate, Letitia James, said it would affect about 3.8 million workers when it takes effect in six months and extends the prohibition to private employers. New York City Mayor Bill de Blasio (D) and Gov. Andrew M. Cuomo (D) had earlier passed orders that would ban salary history details from public-sector jobs.

The thinking behind the new law is that when employers ask about an applicant’s salary history, they can end up perpetuating any discrimination that women or people of color may have faced in the past. When employers ask about current or previous salary, they can hear a number that “anchors” them, and then offer to pay some percentage more on a figure that could already be too low. “Being underpaid once should not condemn one to a lifetime of inequity,” James said in a statement.

Although the measure is for New York-based employees, employees well beyond New York could feel the effects, say equal pay advocates and employment lawyers. Fatima Goss Graves, president-elect of the National Women’s Law Center, said in an email that the measure “stands to transform the way that companies operate around the country,” she said. “So many companies operate in multiple jurisdictions. If a company changes its practices in New York, it is likely to also make changes around the country.”

Melissa Osipoff, a labor and employment attorney with Fisher & Phillips, agreed that companies like to homogenize things as standard as a job application. With so many companies doing business in New York, “I think what we’ll see is companies that do business in New York City just eliminate that from their applications entirely,” she said. “This will have wide-ranging influence.”

Meanwhile, nearly 20 states, the District of Columbia and two cities (San Francisco and Pittsburgh) have introduced legislation that includes a provision against salary history information, according to data from the NWLC. At the federal level, the newly reintroduced Paycheck Fairness Act also calls to ban the question, and Rep. Eleanor Holmes Norton (D-D.C.) plans to reintroduce a bill from 2016 that did, too.

Some business groups have opposed the measure. Kathryn Wylde, president and chief executive of the Partnership for New York City, said in a statement that “closing the gender pay gap is important” and most major employers are already taking steps to correct the problem. “Inserting the city government into the relationship between employer and potential employee is potentially disadvantageous to both,” she said. “Politicians are eager to demonstrate their contribution to popular causes, which is about all this legislation accomplishes.”

It’s also possible the measure in New York could face legal challenges. On Thursday, the Greater Philadelphia Chamber of Commerce filed litigation against the law in that city. “The ordinance is a broad impediment to businesses seeking to grow their workforce in the city of Philadelphia,” the chamber said in a statement, citing a violation of employers’ First Amendment rights.

But other companies have begun privately ending the practice of asking the question on their own. James’s office said that several New York-based companies, including Kickstarter, Peeled Snacks and BBMG were among those who had already prohibited the question.

Others are weighing the concept. Cindy Robbins, who leads human resources for the cloud computing giant Salesforce, said in an interview this week that it’s a shift her staff has discussed training their recruiters to make. “For example, instead of asking what current compensation is, ask what is the expectation they have around compensation,” she said. “That changes the tone around negotiation.”

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As a boss, I’d definitely like to know a potential employment candidate’s previous salaries as it provides me with insight into employee performance.  Forcing employers to operate in the dark can only be bad for business as many small to medium sized businesses can not afford a high employee turnover rate and the less we know about a new hire, the more difficult it is to employ that person to his/her maximum capability.

BNI Operatives: Situationally aware.

As always, stay safe.

Basics of a Background Check

background check

 

The professional investigator should conduct a background check from an experience-based template, outlining his/her methodology.  Aside from the consistency of results, wire-framing an investigation will ensure that the basics of a background check are researched and, serves as a solid springboard once the information pipeline begins to produce.

Below we will outline the various type of background checks and the situations wherein which they should be conducted.

New Hire (Non-Management Level, excepting positions involving access to client and or other employee financial information):

The most relevant and important features of a comprehensive background check are the:

1. Address, SSN and DOB verification and

2. Criminal history (this level search will not include criminal charges – only convictions)

3. E-Verification clearance ensuring that the potential new hire is in fact legally allowed to work in the U.S.

New-Hire (Management, fiduciary trust or client financials access and C positions):

A more comprehensive search than a basic new hire background check, those conducted for potential management, C positions and employees with access to client financial information should include the above and:

1. A full credit check.

2. Assets search,.

3. An in-depth criminal records review (to include criminal charges).

New Partner:

There is a Japanese adage, correctly applicable to undertaking a new partner: “One must marry with both eyes open.”

In taking on a new partner, including all of the above searches, the following investigations should also occur:

1. Full litigation history.

2. Previous positions and conditions of departure verifications.

3. Professional license search (to ensure licensure validity and uncover professional sanctions, if any).

4. Full criminal check to include researching the backgrounds of the new partner’s former associates.

5. Develop the subject’s public and private profile.  (There are many methods employed by professional detectives that will allow the investigator to acquire the comprehensive information necessary to develop a 360 degree assessment of the subject.)  This is a critical part of  checking the background of a potential partner.  In today’s information age, no one can control all visible aspects of one’s life and there will be the inevitable professional and personal disclosures online.  While no single posting (unless of course it’s of a truly, damaging event), will reveal the subject’s true character,  subsequent to assessing the all of the tangible search results, a pattern should become obvious to the investigator which will allow for an accurate analysis of the subject’s behavior.  The past portends the future.

Recommendation: All of the above information now relayed, and even with the verified, accurate and comprehensive information you now have in hand regarding your new business association, never forget to trust your instinct.

BNI Operatives: Situationally aware.

As always, stay safe.

Married? Age? Kids? Can You Ask These Questions of Employment Candidates?

Image result for employee interview asking questions

Can you ask a prospective employee her age?  Is the candidate married?  What about a phone number for an emergency contact?

With employment regulations one of the fastest changing sectors of human resources and company personnel management today, we compiled an employment interview Can/Can’t Ask questions list for you today from hiring information from the U.S. Department of Labor and the Small Business Administration.

Address/ Housing/Length of Residence

CAN ASK:

• Place and length of current and previous address

• For applicant’s phone number or how s/he can be reached

IT IS ILLEGAL TO ASK/REQUEST:

• Specific inquiry into foreign addresses that would indicate national origin

• Names or relationship of persons with whom applicant resides

• Whether applicant rents or owns home

Age

BEFORE HIRING ONLY:

• If a minor, require proof of age in the form of a work permit or a certificate of age

• If age is a legal requirement, can ask “If hired, can you furnish proof of age?” or a statement that hire is subject to verification of age

• Whether or not an applicant is younger than the employer’s regular retirement age

AFTER HIRING ONLY:

• Require proof of age by birth certificate

IT IS ILLEGAL TO ASK/REQUEST:

• About the age or age group or date of birth of the applicant

• Birth certificate or baptismal record before hiring

• Questions that would tend to identify persons between 40 and 60 years of age.

Ancestry/ Birthplace/ National Origin

CAN ASK:

• “After employment, can you submit a birth certificate or other proof of U.S. citizenship or other proof of the right to remain in or work in the U.S.?”

• About foreign language skills (reading, speaking, and/or writing) if relevant to the job

IT IS ILLEGAL TO ASK/REQUEST

• If an applicant is native-born or naturalized

• The birthplace of applicant

• Questions which identify customs or denomination

• About birthplace of his/her parents, grandparents and/or spouse or other relatives

• Require applicant submit a birth certificate or naturalization or baptismal record before employment

• About any other inquiry into national origin (for applicant or his or her spouse or parents; maiden name of wife or mother)

• First language

• Date of arrival in U.S.

• Port of entry Citizenship CAN ASK:

• Whether a U.S. citizen

• If no, whether intends to become one

• If you are not a U.S. citizen, do you have the legal right to remain permanently in the U.S.?

• If not a citizen, are you prevented from lawfully becoming employed because of visa or immigration status?

• If spouse is a citizen

• Statement that, if hired, applicant may be required to submit proof of citizenship.

AFTER HIRING ONLY:

• Require proof of citizenship

IT IS ILLEGAL TO ASK/REQUEST

• “Of what country are you a citizen?”

• If native born or naturalized (for applicant or his or her parents or spouse)

• Proof of citizenship before hiring

• Whether parents and/or spouse is native born or naturalized

• Date of citizenship (for applicant or his or her parents or spouse)

Credit Rating NO questions may be asked regarding credit. 

Criminal Record (Arrests and Convictions)

CAN ASK:

• About actual convictions other than misdemeanors that relate reasonable to fitness to perform a particular job

• About convictions or imprisonment if crimes relate to job duties and conviction or release from imprisonment occurred within the last ten years

IT IS ILLEGAL TO ASK/REQUEST

• To inquire about arrests without convictions

• Check into a person’s arrest, court, or conviction record if not substantially related to functions and responsibilities of the particular job in question.

• About any involvement in demonstrations

Disabilities

CAN ASK:

• Whether or not applicant is able to carry out all necessary job assignments/functions and perform them in a safe manner “How would you perform this particular task?”

• Applicant to indicate how and to what extent they are disabled. Employer must indicate to applicants that (1) compliance with the invitation is voluntary; (2) information is being sought only to remedy discrimination or provide opportunities for the disabled; (3) information will be kept confidential; and (4) refusing to provide information will not result in adverse treatment. accommodation(s) he or she may need until after the interviewer has established that the applicant is qualified for the job and is considering that person for employment. An employer must be prepared to prove that any physical and mental requirements for a job are due to “business” necessity” and the safe performance of the job. Except in cases where undue hardship can be proven, employer must make “reasonable accommodations” for the physical and mental limitations of an employee or applicant.

IT IS ILLEGAL TO ASK/REQUEST:

• How or when disability occurred

Education

CAN ASK:

• What academic, professional or vocational schools attended

• About language skills such as reading and writing foreign languages

• Office skills

IT IS ILLEGAL TO ASK/REQUEST

• Specifically ask the nationality, racial or religious affiliation of schools attended

• To ask how foreign language ability was acquired

Experience

CAN ASK ABOUT:

• Applicant’s work experience, including names and addresses of previous employers, dates of employment, reasons for leaving, and salary history

• Other countries visited

Family/Relatives

CAN ASK:

• If the spouse is employed at the company/firm

• Names of applicant’s relatives already employed by company

• Names and addresses of parents or guardian of minor applicants

AFTER HIRING ONLY:

• To ask name, relationship and address of person to be notified in case of emergency

IT IS ILLEGAL TO ASK/REQUEST

• Name of a spouse

• Whether or not a spouse is employed

• How much a spouse earns

• Whether or not a spouse is subject to transfer

• Questions about any relative of a candidate

• Names of relatives not working for the institution

• Name or address of any relative of adult applicant, other than those employed by company/firm

Gender/Sex Inquiry

AFTER HIRING ONLY:

• Can ask about gender for affirmative action plan statistics

IT IS ILLEGAL TO ASK/REQUEST

• Sex of applicant

• Anything which would indicate gender unless job related.

Health/Physical Condition

CAN ASK:

“Do you have any physical, mental or sensory handicaps which might affect work performance or which should be considered in job placement?”

May NOT ask

• “Do you have any handicaps?” or questions that divulge handicaps which do not relate to the job.

• Any questions regarding having received worker’s compensation.

Marital/ Parental Status  

BEFORE HIRING:

• Whether applicant can meet specified work schedules or has activities, commitments, or responsibilities that may hinder the meeting of work attendance requirements. If such questions are asked, they must be asked of both sexes.

IT IS ILLEGAL TO ASK/REQUEST

• About marital status before hiring (married, single, divorced, engaged, etc.)

• About the number and age of children

AFTER HIRING ONLY:

• Married or single status for insurance and tax purposes Number and ages of dependents and age of spouse for insurance and tax purposes

• Information on child-care arrangements

• About pregnancy and if applicant plans to have (more) children

• Any question that directly or indirectly results in limitation of job opportunity in any way

Military Service

CAN ASK:

• Inquiry into service in U.S. armed forces

• Branch of service and rank attained

• Any education or job related experience as it relates to a particular job

• Require military discharge certificate after hiring

IT IS ILLEGAL TO ASK ABOUT OR REQUEST

• Military records

• Military service of any country other than the U.S

• Type of discharge

Religion/Creed

CAN ADVISE:

• An applicant about normal hours and days of work required by the job to avoid possible conflict with religions or other personal convictions

IT IS ILLEGAL TO ASK/REQUEST

• Applicant’s religions denomination or affiliation, church, parish, pastor, or religious holidays observed

• Applicants may not be told that any particular religious groups are required to work on their religious holidays.

• About applicant’s religion or religious customs and/or holidays

• Recommendations from church officials

As with anything else in the workplace, when hiring, exercise common sense, compassion and restraint in asking for unnecessary personal information.  Stick to the task at hand – hiring skilled, competent and willing workers.

BNI Operatives: Situationally aware.

As always, stay safe.

Business & Employee Background Checks – Know Your Partners, Employees & Vendors.

fingerprints

If you run a business, you have lots of worries.  Aside from the normal concerns like competition, pricing, R&D/marketing, location and customer service,  security issues  have become increasingly important.   Instinct can only take a business owner so far in assessing the work relationships in which he becomes involved.   A businessperson can run up against:

  • Employees with compromised criminal/civil litigation histories
  • Prospective partners who are less than truthful about their business (and related personal – divorce, child support, etc.) histories
  • Theft
  • Fraud
  • Embezzlement
  • Scams
  • Unscrupulous suppliers/subcontractors

In looking at the statistics of employee theft alone:

“In a recent [2014] survey of small businesses, a University of Cincinnati criminal justice researcher has found that only 16 percent of those that have experienced theft by employees actually reported that theft to the police.

That’s even though 64 percent of the small businesses surveyed reported experiencing employee theft.”

Increasingly, security tech companies pitch IT monitoring systems and control to business owners as the most effective means of controlling today’s work environment as it relates to corporate crime.  Now let’s look at the reality:

detection

The vast majority of business thefts, embezzlements and frauds are uncovered by tips, audits and by accident. Accepting these statistics as fact borne over time, what does the employer do proactively and reactively with workplace crimes?

Employee Background Checks Provide the Answer

Certainly there are many free online tools of which prospective employers can avail themselves to research their employees backgrounds, but such a search should just be a cursory check, pre-hire. Working with an experienced investigator will yield formerly-hidden information as the professional background checker knows what to look for and where to look for it  – often in databases that are not easily available to the general public and through a process of key data analysis that can only be borne of experience, inclination and talent.

Here are the types of things a business owner can and should be looking into for the protection of his business:

Criminal Background Checks

Any time your business is dealing with someone you don’t know, you should run a quick check to see if they have any history of criminal activity. It’s very simple to find out about criminal records, FBI records, prison records and sex offender status.  There is access to their entire criminal history if there is one. With violence in the workplace such a major issue, a simple criminal check can be a very effective way to avoid problems before they happen.

Background Check for Employment (Pre-Employment Screening)

If you’ve got a small business, you should be pre-screening each person you consider hiring. No matter how professional, or how harmless, they appear.

A small print shop franchise in Florida hired an especially friendly fellow as their bookkeeper after the owner got too busy to handle it himself. The new employee didn’t offer much in the way of references but he sounded like he knew what he was doing and – big plus – he agreed to work cheap. The owner figured he would save money hiring the guy. He figured wrong.

The bookkeeper drained more than a hundred thousand dollars out of the company before they found him out. Turned out he’d previously been charged with embezzlement.  This is something a criminal background check would have quickly turned up. (Tip: Your investigator should know the positions sought by would-be new hires.  If a crime is directly related to the employee’s duties, [e.g., previous theft charges/accounts payable job], that history would certainly be a direct factor in the hiring decision.)

Background Check Existing Employees – Make it a Condition of Employment

You shouldn’t check only new hires. Over time, employees can develop habits and get involved in activities you’d never suspect. So you should regularly check on existing employees. Note: this is something you should get legal advice for – but generally if it’s a condition of employment and you let them know in writing, it’s not invading privacy. You entrust employees with company funds or materials that can be stolen, or negotiating and purchasing power that can be abused. Keeping an eye on existing employees is just being prudent.

Run a Background Check on Each Company or Individual You Do Business With

You should investigate every supplier or contractor who serves your business. If the possibility of harm exists, then you need to know if someone you’re in business with is likely to harm you. You can check credit, check backgrounds of the owners and managers, check the company itself for any past criminal or questionable activity.

Run a Background Check on Each Partner With Which You Intend Do Business.

Here at BNI we’ve worked with numerous matters involving prospective and current business partners.  Our clients come to a realization during our investigations that either the partner is upstanding or s/he is seeking a working relationship that is covertly dishonest due to personal and professional issues, (i.e., expensive divorces, costly child support litigation, past debt, etc.)  Especially those who are very close to your business  – your means of support –  should be thoroughly vetted and, moreso after the partnership is active and red flags begin to appear.  Our intent and focus during partnership investigations are on collecting information that can be used in potential criminal and civil litigation.

I’m not relating anything in this post that you, as the business owner, have not already considered or experienced but I’ll add the important point that with today’s tech tools, conducting this type of business due diligence is cost-effective and results-effective and is easily set up on an as-needed scheduling basis.

Given the increasing transiency and mobility of our work relationships, it is smart to proactively protect your business, rather than the latter, often very expensive clean-up required in the aftermath of personnel failure.

BNI Operatives: Situationally aware.

As always, be safe.

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