HIRING AND BACKGROUND INVESTIGATION PUBLIC AGENCY TRAINING COUNCIL 1
Overview • Police Officer hiring process not a simple task • Like a puzzle, there are many pieces that must fit together 1. Position announced or advertised 2. Active recruitment 3. Accept applications 4. Physical Abilities Test 5. Written exam held 6. Notification of results 7. Oral Interview 2
Overview 8. Background Investigation 9. Conditional offer of probationary employment 10.Polygraph examination ????????? 11.Physical examination 12.Psychological examination 13.Background investigation 14.Appointment 3
Overview • Job Qualified, Job Certified – Allows requirement of certain qualifications • Based on legitimate requirements of the job • Not based on subjective preference • Example: – Written exam contains questions relevant to job tasks required – Physical abilities test measures attributes necessary to do the job 4
ADA Brief Overview 3. I know I can't give a job applicant a medical exam before a conditional job offer is made. But what about physical agility and physical fitness tests? A: You can give job applicants tests measuring an applicant's ability to perform job-related tasks or physical fitness tests (tests measuring performance of running, lifting, etc.) before any job offer is made. Tests that measure simply an applicant's ability to perform a task are not considered to be medical examinations. But remember, job requirements that screen out or tend to screen out persons with disabilities are legitimate only if they are job-related and consistent with business necessity. 5
ADA Brief Overview 4. But to limit the police department's liability, I need to get a medical approval that it's o.k. for a job applicant to take the physical fitness test. Doesn't the ADA create a catch-22 for police departments? A: No, the ADA's prohibition on medical exams does not make it illegal for a police department to ask an applicant to provide a certification from a doctor that he or she can safely perform the physical fitness test. The ADA allows an employer to require a limited medical certification in these circumstances. The medical certification should only indicate whether or not the individual can safely perform the test and should not contain any medical information or explanation. 6
ADA Brief Overview 4. Cont’d A: The police department may also ask the applicant to sign a waiver releasing the employer from liability for injuries during the test resulting from any physical or mental disorders. 7
ADA Brief Overview 5. Recently a job applicant for a police officer's job came into the police department with fingers that were visibly impaired. The police department required that he demonstrate that he could pull the trigger on the police issue firearm and reload it before a conditional job offer was made. Did this violate the ADA? A: No. If an individual has a "known" disability that would reasonably appear to interfere with or prevent performance of job functions, that person may be asked to demonstrate how these functions will be performed, even if other applicants are not asked to do so. 8
ADA Brief Overview 13. Can police departments still use polygraph tests at the application stage or do we have to wait until a conditional job offer has been made? A: You can conduct polygraph exams before a conditional job offer is made. However, employers must exercise care not to ask any prohibited disability-related inquiries in administering the pre-offer polygraph exam. 9
Adverse Impact • If the process has an adverse impact on a protected class, the testing standard must relate to a bona fide occupational qualifictation 10
Adverse Impact • For an organization to protect themselves from Adverse impact, they must: 1. Have an appropriate standard of job relevance. 2. Must conduct a thorough job analysis. 3. Must define and create a relevant, reliable and unbiased measure of performance for validation work. 4. Provide evidence that the selection instrument predicts performance equally well for all groups. 5. Must have a relevant sample in their validation study. 11
Negligent Hiring • Nature of the job – Many courts have taken the stand that pre- employment investigations must be reasonable in terms of the job being applied for. • Potential risk, harm, or injury to third parties that may occur should dictate as to the depth of the investigation • Law Enforcement – Who the officials must interact and care for includes not only their employer, but the public at large 12
Negligent Hiring • Enhancing Hiring Practices 1. Background checks • Effective and consistent – Negative info Military or employment disciplinary incidents » Multiple civil court appearances » • Most Important factor – The INVESTIGATOR!!!!!!!!! Strict accountability and accounting » Running log of activity » Enhances the process as candidates lost as time increases » 13
Negligent Hiring • Enhancing Hiring Practices 2. Psychological Testing and Questionnaires • Preliminary Background Questionnaire – Self eliminator • Polygraph exams • Psychological Testing – ADA requires this phase at point of “conditional offer of employment” 14
From the Supreme Court • BOARD OF THE COUNTY COMMISSIONERS OF BRYAN COUNTY, OKLAHOMA, PETITIONER v. JILL BROWN ET AL. SUPREME COURT OF THE UNITED STATES 520 U.S. 397 ; 117 S. Ct. 1382 15
Held: • A single bad hiring decision by the final policy maker of the agency can establish liability. • The conduct committed by the law enforcement officer and subject to the suit must relate to the conduct related to the bad hiring decision 16
Bryan County • A plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision. Only where adequate scrutiny of an applicant's background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party's federally protected right can the official's failure to adequately scrutinize the applicant's background constitute "deliberate indifference." 17
Cont’d • it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff. The connection between the background of the particular applicant and the specific constitutional violation alleged must be strong. 18
Screening Process • Based on valid hiring standards – Job task analysis • Written Exam – Job qualified, job certified – Non-discriminatory – Set passing grade • Not “floating” – Utilize a “sanitized” exam • Met legal review or challenge 19
Screening Process • Physical Fitness Assessment – Not a physical fitness test • Physical abilities test – Related to the successful performance of the job – Based on the required skills necessary to perform the job – Based on essential job functions • Determined by: – Doing the job – Observing the job – Job task analysis – Task force or committee 20
Screening Process • Physical Fitness Assessment – Utilize established standards • Cooper Standards • Fit Force Standards – Utilize Physical Abilities Test • Based on essential job functions • Variety of types and form – Pass/Fail 21
Screening Process • Oral Interview – Determine how many, type – 3 to 5 members • Train members – As to scoring criteria • Have alternates prepared – In case of sickness, court, conflict of interest – Allow adequate time for interview • Do not OVERWORK interview panel 22
Pre-Employment Inquiries • Questions to ask – Lawful or Unlawful – There are certain questions that are allowed by law, and there are questions that are not allowed. – The following slides include some of the subject matter to inquire about, the Lawful questions and the Unlawful questions. 23
Federal Laws Involving Selection and Employment of Personnel • Law – Title VII of the Civil Rights Act of 1964 – Obligations • Prohibits discrimination on grounds of race, color, religion, sex, or national origin. – Employees Covered • All employers with 15 or more employees, and all public employees. 24
Federal Laws Involving Selection and Employment of Personnel • Law – Age Discrimination in Employment Act Obligations • Prohibits discrimination on grounds of age. – Employees Covered • All employers. – Law Enforcement exempt for applicants over 40 years of age. – Also exempts law enforcement in setting lower age levels. 25
Federal Laws Involving Selection and Employment of Personnel • Law – American with Disabilities Act – Obligations • Forbids discriminating against handicapped persons who can perform essential job functions with reasonable accommodations. – Employees Covered • All employers. • Law – Civil Rights Act of 1991 – Obligations • Forbids having different cutoff scores due to sex, religion, or national origin – Employees Covered • All employees. 26
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