Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

Developing an Effective and Legal Hiring Process

Original Posting Date: 10/8/2024

The hiring process for any organization can make or break the recruitment and retention efforts for talented employees in a very competitive labor market and low levels of unemployment.  Setting the tone with an inefficient or ineffective hiring process will impact the successes we have recruiting applicants into any organizations, regardless of benefits and perks being offered.  Most people decide to stay or start looking for a new job within the first 60-days of employment.  We should investigate the applicant’s qualifications, collect valid and useful data, avoid any stereotypes and hire legally.  We should communicate and train supervisors and managers in our hiring processes, to ensure a consistent and effective method throughout the organization.    

Questions and Inquiries Not to Ask:

  1. You look so familiar to me.  You sit behind me in church, right?
  2. I can’t place your accent.  What is it?
  3. How are you feeling?  When are you due?  Do you have kids?
  4. Are you married?
  5. Do you have a disability?
  6. Would you need a reasonable accommodation if you were offered this job?
  7. How many sick days did you use last year?
  8. Have you ever been on Workers’ Compensation?
  9. Have you ever had a work-related injury?
  10. What medications are you currently taking? 

New York Labor Law Section 201-d:

This labor law prohibits employers from refusing to hire individuals because of lawful; off-duty recreational activities.  What does this mean for our organizations?  If you review social media or conduct Google searches on applicants prior to the making an offer, be aware of this law.  Social media reviews or searches can lead to bias decision making. 

Reference & Employment Checks:

Reference and employment checks can be an effective tool to use during the hiring process.  Asking the applicant to sign a waiver prior to conducting reference and employment checks, can increase the information we can obtain during the process.  The waiver provides a release of liability and claims for providing information about the applicant.  I’m happy to draft waiver language for an employer.

Educational and Certification History:

A SHRM survey found that only half of employers verify candidate’s education credentials and 85% of others surveyed, reported uncovering a lie or misrepresentation on a candidate’s resume or job application.  In my career, I have been involved in two cases of lying about degrees on a resume and job application.  The one area I do not see employers check often is, certification active vs. in-active certification status or not renewed/no continuing education credit.  With SHRM and HRCI credentials, certified professionals must recertify with continuing education credit every three-years.  Many professional certifications have a similar process, we can and should review the active status of certifications, along with academic credentials.

Salary History: 

Watch for changes in New York State on this law, it will impact most employers throughout the state, if not all.  We will need to review our hiring process, job applications and communicate the changes to managers and supervisors.  This will be a change to watch for at the end of 2019, start preparing now.  Remember city and county specific requirements in this area.

“Ban the Box” Regulations:

  1. New York City: Fair Chance Act; applies to employers with 4 or more employees, prohibits inquiring about or considering the criminal history of job applicants until after extending a conditional offer of employment
  2. Buffalo: no criminal history inquires on initial job applications
  3. Rochester: no criminal history inquiries until after initial job interview or conditional job offer.
  4. Syracuse: no criminal history inquiries or background checks until after conditional job offer
  5. Westchester: no criminal history inquiries until after application is submitted (includes job posting prohibition)

Criminal Background Checks New York Employers:

  1. Post a copy of Article 23-A of the New York Corrections Law
  2. Provide a copy of Article 23-A to a candidate if a background check report contains criminal information. Recommendation provide to the candidate before conducting the check.
  3. We must also comply with the Fair Credit Reporting Act disclosures and notice requirements as well.

New York City Information

These are just a few thoughts on developing a legal and effective hiring process.  As laws continue to change, so to should our hiring processes. Open communication, proactive feedback and follow-up is necessary for an effective process.  Ask for feedback during the hiring process and make evolutionary changes to ensure a successful recruiting campaign.

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

2025 New York State Retailer Worker Safety Act

Additional Information by State

New York Governor Kathy Hochul signed a bill on September 4, 2024 that requires retail employers to develop and implement workplace violence prevention training and policies, among other measures. The law becomes effective 180 days after her signature, or March 3, 2025.

The “Retail Worker Safety Act,” (the “Act”) applies to any person, entity, business, or company that has at least 10 employees working at a retail store. A “retail store” is defined as a store that sells consumer commodities at retail and is not primarily engaged in the sale of food for consumption on the premises. It requires covered employers to adopt a workplace violence prevention policy to be provided to all employees upon hire and annually thereafter.

The Act further requires covered employers to implement a workplace violence prevention training program and present it to their employees upon hire and annually thereafter.

Additionally, this law requires covered employers to provide panic buttons to their retail workers to be used in case of an emergency (more on this requirement below). (Littler)

Retailers With 10+ Employees

The act covers all employers with at least 10 retail employees who work at a retail store, which is defined broadly as “a store that sells consumer commodities at retail and which is not primarily engaged in the sale of food for consumption on the premises.”

Written Workplace Violence Prevention Policies – the act requires employers to assess potential workplace violence hazards and adopt written workplace violence prevention policies that address risk factors and prevention methods. Notably, the act requires the Department of Labor (“DOL”) to create and publish a model retail workplace violence prevention guidance document and retail workplace violence prevention policy. The model policy will:

  1. Outline a list of factors or situations in the workplace that might place retail employees at risk of workplace violence, including, but not limited to:
    1. Working late-night or early-morning hours;
    1. Exchanging money with the public;
    1. Working alone or in small numbers; and
    1. Uncontrolled access to the workplace.
  2. Outline methods that employers may use to prevent incidents of workplace violence, including, but not limited to, establishing and implementing reporting systems for incidents of workplace violence.
  3. Include information concerning the federal and state statutory provisions concerning violence against retail workers and remedies available to victims of violence in the workplace and statement that applicable local laws may exist.
  4. Clearly state that retaliation against individuals who complain of workplace violence or the presence of factors or situations in the workplace that might place retail employees at risk of workplace violence, or who testify or assist in any proceeding under the law, is unlawful.

Employers subject to the act are required to adopt the model policy or to implement their own policy that equals or exceeds the minimum standards set forth in the statute and the model policy. Accordingly, in the event an employer enacts a workplace violence prevention policy before the DOL issues its model policy, it is important that the policy satisfy these statutory elements.

Moreover, the workplace violence prevention policy must be provided to all employees in writing upon hire and annually thereafter.

Workplace Violence Prevention Training – the act mandates that employers conduct interactive workplace violence prevention training, a model of which will be published by the DOL. Employers subject to the act must utilize the model training or establish training that equals or exceeds the minimum standards provided by the model. Importantly, the training must be interactive and include, but not be limited to:

  1. Information regarding the requirements of the act;
  2. Examples of measures retail employees can use to protect themselves when faced with workplace violence from customers;
  3. De-escalation tactics;
  4. Active-shooter drills;
  5. Emergency procedures;
  6. Instructions on the use of security alarms, panic buttons, and other related emergency devices;
  7. Supervisor conduct and additional responsibilities for supervisors to address workplace-specific emergency procedures; and
  8. Identification of a site-specific list of emergency exits and meeting places in case of emergency.

The workplace violence prevention training must be provided upon hire and on an annual basis thereafter.

Written Notice – the act mandates that employers provide retail employees upon hire and at each annual training a written notice in English and in the language identified by each employee as their primary language (so long as the DOL has issued a model in that language). If the DOL has not issued a model in an employee’s primary language, the employer may provide an English-language notice.

These requirements are effective March 3, 2025.

Retailers With 500+ Employees

Effectively January 1, 2027, employers with 500 or more employees nationwide will be required to install panic buttons in their New York locations. Under the act, employers must either install buttons throughout their stores or provide wearable or mobile phone-based panic buttons to employees. If the employer chooses to utilize wearable or mobile phone-based panic buttons, the employer must provide such panic buttons to all retail employees. When activated, the button would alert the local 9-1-1 public safety answering point, relay the employee’s location, and dispatch local law enforcement to the site. (Lexicology)

Additional Recommendations

Employers take a close look at the DOL’s model policy and training and ensure that any training and policies adopted are complaint with this new law. One additional item to be aware of: the policy must be provided in the employee’s primary language