Human Resource Management I: Employee Recruitment and Selection

February 21, 2018

Human resource management encompasses a wide variety of issues relating to the relationship between an employer and its employees. These issues can present many challenges for the employer, particularly in the public sector. This chapter familiarizes elected city officials with certain legal and practical considerations associated with two of the more significant human resource management issues that Georgia municipal employers face: recruiting and selecting qualified job applicants.

Recruiting Qualified Candidates for Employment

Job postings should state the duties of the position, minimum and desired qualifications, salary ranges, and necessary special licenses or certificates. Vacancies should remain posted long enough to allow those interested in the position a reasonable opportunity to apply. To ensure that the applicant pool is representative of all segments of the community, steps should be taken to post or otherwise announce vacancies in newspapers and other publications, message boards, websites, local school placement offices, local job fairs, radio broadcasts, and other media popular with and/or accessible to each such segment.

Job postings should identify the city as an equal employment opportunity employer, and an "EEO Statement” reflecting the current state of the law should be adopted. For example: “The city provides equal opportunity to all employees and applicants for employment without regard to race, color, religion, sex (including pregnancy), sexual orientation, transgender status/gender identity, national origin or citizenship, age, disability, genetic information, or military or veteran status, or any other status or classification protected by applicable federal, state and local laws.”

The 11th Circuit Court of Appeals, which establishes federal legal precedent for the states of Georgia, Florida, and Alabama, has held that sexual orientation is not a protected classification under Title VII of the Civil Rights Act of 1964 (Evans v. Georgia Regional Hospital, 850 F. 3d 1248 (11th Cir. 2017)). As a governmental body, however, a city’s employment practices are also subject to the Equal Protection Clause of the 14th Amendment, which extends some protection to the classification (e.g., Inniss v. Aderhold, 80 F. Supp. 3d 1335 (N.D.Ga. 2015)).

Recent case law also holds that transgender status/gender identity is a protected classification under the Equal Protection Clause and under Title VII (Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Chavez v. Credit Nation Auto Sales, LLC, 641 Fed. Appx. 883 (11th Cir. 2016)).

The Immigration Reform and Control Act, enforced by the U.S. Department of Justice, prohibits discrimination against employees or applicants for employment based on their citizenship status (8 U.S.C. §1324b(a)(1)(B)). Georgia law, on the other hand, requires that police officers and communications officers be U.S. citizens(O.C.G.A. § 35-8-8(a)(2); Ga. Comp. R. & Regs. § 464-14-.02(b)).

Selecting Qualified Candidates for Employment

Depending on the position being filled, the selection process involves evaluating applications and/or resumes, interviewing candidates, speaking with references, conducting background checks, administering written examinations, and conducting assessment centers. Cities should strive to choose the best qualified applicants while avoiding unnecessarily stringent hiring standards that may adversely impact minority and other protected groups.

Conducting Criminal Background Checks

Georgia law requires employers to exercise due diligence to avoid hiring or retaining employees who present an unreasonable risk of harm to their coworkers or members of the public. Specifically, employers are bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency (O.C.G.A. § 34-7-20). Thus, when a claim for damages is asserted by someone harmed by a municipal employee, and it is determined that the city knew or, in the exercise of reasonable diligence, should have known that its employee posed such a risk, liability can be substantial (Coleman v. Housing Auth. of Americus, 191 Ga. App. 166 (1989); TGM Ashley Lakes, Inc. v. Jennings, 264 Ga. App. 456 (2003)). Consequently, criminal background checks have become a fairly standard part of most cities’ hiring procedures—particularly those with ready access to the Georgia Crime Information Center (GCIC) database through their police departments (O.C.G.A. § 35-3-34 et seq.).

On the other hand, undue emphasis on criminal history information by employers can result in a disparate impact on minority and other protected groups. Consequently, the U.S. Equal Employment Opportunity Commission (EEOC), with the support of many court decisions, has developed guidelines to assist employers in the lawful use of criminal history information for hiring (and promotion) purposes. Importantly, these guidelines make a critical distinction between arrests and convictions, with only the latter being regarded as reliable evidence that the candidate committed a criminal act. In fact, the EEOC considers hiring and promotion decisions based solely on arrests to be unlawful.

Furthermore, while convictions are regarded as reliable evidence that the candidate committed a crime, the EEOC still considers that employers cannot lawfully reject a candidate on this basis without first giving specific consideration to (1) the nature and gravity of the crime or its underlying conduct; (2) the amount of time that has passed since the crime was committed; and (3) the relationship of the crime to the position sought. The EEOC also expects employers to allow such candidates the opportunity to explain the circumstances of the conviction and otherwise make a case for why it should not be disqualifying. Ultimately, an employer who declines to hire (or promote) a candidate due to a criminal conviction must be prepared to demonstrate that treating the conviction as disqualifying is job-related and consistent with business necessity.

Georgia, like many states, precludes state and local government employers from hiring convicted felons as peace officers, communications offers and, to a lesser extent, firefighters (O.C.G.A. § 35-8-8 (peace officers); Ga. Comp. R. & Regs. §464-14-.02 (communications officers); O.C.G.A. § 25-4-8 (firefighters)). The EEOC does not regard such blanket prohibitions as lawful, however, thereby setting the stage for a possible courtroom showdown between the EEOC and the State of Georgia with a local government employer caught in the middle, accused of violating federal law because it complied with state law.

Relevant also to the issue of criminal background checks is Georgia’s “First Offender” law, which precludes an employer from declining to hire (or promote) a candidate based solely on a conviction that was accorded “first offender” treatment. In fact, under such circumstances, the conviction is deemed not to have occurred, meaning that such candidates may accurately deny ever having been convicted (O.C.G.A. § 42-8-63; Ga. Comp. R. & Regs. § 140-2-.04(2)(a)(3)). While the convictions themselves are off limits, municipal employers may nevertheless evaluate the misconduct underlying an applicant’s receipt of first offender treatment to determine whether the misconduct itself contraindicates “good moral character,” or otherwise constitutes a non-conviction basis for disqualifying the candidate under the city’s established hiring standards, such as illegal drug activity, involvement in theft, etc. (O.C.G.A. §§ 25-4-8(a)(3), 35-8-8(a)(6); Ga. Comp. R. & Regs. §§ 205-2-1-.04, 464-3-.0(1)(h); Dominy v. Mays, 150 Ga. App. 187 (1979); 1986 Op. Atty Gen. Ga. 189, 1986 Ga. AG LEXIS 31, at *4 (Aug. 18, 1986)).

Finally, in recent years, some Georgia cities have voluntarily implemented versions of Governor Nathan Deal’s “Ban the Box” initiative, whereby criminal background checks are not conducted until the later stages of the selection process, to ensure that a candidate’s criminal history is evaluated in the context of his/her qualifications for the position in question. This initiative is designed to facilitate a more objective assessment of whether the conviction is genuinely disqualifying and is credited with helping thousands of individuals overcome their criminal pasts to become productive employees and contributing members of society (Ga. Exec. Order No. (Feb. 23, 2015)).

Pre-Employment Drug Testing

Public sector drug testing constitutes a search within the meaning of the Fourth Amendment. Nevertheless, the U.S. Supreme Court held that a public employer is authorized to conduct drug tests without the sort of individualized suspicion normally required by the Fourth Amendment when there is a “special need” that outweighs the privacy interests of the employee (Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989); National Treasury Employees v. Von Raab, 489 U.S. 656 (1989)). In the Skinner case, the Court found that employment in a public safety capacity met this “special need” standard. Likewise, in Von Raab, the Court held that the standard is met in the case of employees who carry firearms and/or are directly involved in drug interdiction.

Based on similar considerations of “safety-sensitive” positions, the federal Omnibus Transportation Employee Testing Act of 1991 requires drug testing of certain employees in the aviation, motor carrier, railroad, and mass transit industries (49 U.S.C. §§ 31301 and 31306; 49 C.F.R. Part 382.101, et seq.; 49 C.F.R. §383.5; 61 Fed. Reg. 9546 (Mar. 8, 1996) and 61 Fed. Reg. 14,677 (Apr. 3, 1996); 65 Fed. Reg. 79462 (Dec. 19, 2000)). Under this Act, any city employee with a Commercial Driver’s License (CDL) is subject to drug testing, including pre-employment testing.

While the majority view of pre-employment drug testing is that public employers may require applicants for safety-sensitive positions or other jobs meeting the Supreme Court’s “special need” standard to be tested, there is no consensus on the constitutionality of across-the-board testing of all applicants for employment. The California Supreme Court held that such testing was constitutional, reasoning that municipal employers cannot evaluate applicants the way they can employees (Loder v. City of Glendale, 14 Cal. 4th 846, 927 P. 2d 1200 (Cal. 1997), cert. denied, 522 U.S. 807 (1997)). On the other hand, a federal district court in Georgia struck down a state law requiring across-the-board testing of all applicants for State employment, holding that the law was overly broad in light of the standard established by the Supreme Court’s Von Raab decision (Georgia Association of Educators v. Harris, 749 F. Supp. 1110 (N.D. Ga. 1990); see also Voss v. City of Key West, 24 F. Supp. 3d 1219 (S.D. Fla. 2014), holding that a city’s interest in safe, effective, and efficient delivery of public services was not a “special need” sufficient to enable its across-the-board pre-employment drug testing policy to survive a Fourth Amendment challenge).

Until the U.S. Supreme Court, the 11th Circuit Court of Appeals, the Georgia Supreme Court, or the Georgia Court of Appeals has occasion to consider the constitutionality of across-the-board pre-employment drug testing, any city with such a policy or contemplating the adoption of such a policy must balance the risk of a successful constitutional challenge against the perceived adverse consequences of less comprehensive pre-employment testing.

Application of Georgia’s “Sunshine Laws” to the Selection Process

Georgia’s open records and open meetings laws have special application to the municipal selection process. With regard to the former, while hiring-related records are generally subject to public disclosure, certain exemptions bear noting. For instance, a confidential evaluation submitted to a city in connection with its consideration of a particular applicant is exempted from disclosure, as are examinations prepared and administered to applicants by the city (O.C.G.A. § 50-18-72(a)(7)). Additionally, a city need not disclose any records identifying applicants for city manager, city administrator, or other open “executive head” positions; provided, however, that at least 14 calendar days prior to the hiring decision, all records relating to the top three candidates shall be subject to disclosure upon request (O.C.G.A. § 50-18-72(a)(11)). Even where a given record is not subject to exemption, it may contain information which itself is not subject to public disclosure and therefore must be redacted prior to production of the record. Examples include social security numbers, mother’s birth name, dates of birth, home address and telephone number, credit or debit card information, bank account number or information, insurance or medical information, unlisted telephone numbers, personal email addresses or mobile telephone numbers, and the identities of immediate family members or dependents (O.C.G.A. §§ 50-18-72(a)(20)(A), (a)(21)).

With regard to Georgia’s open meetings laws, a city council may go into executive session to discuss and deliberate upon the hiring or appointment of a prospective employee, provided that it is the actual hiring or appointing authority for the position in question. Furthermore, when the position is for city manager, city administrator, or other “executive head,” the city council may interview applicants in executive session. In either instance, however, any vote on the matter must be conducted in open session. These exemptions apply only when the discussions or deliberations concern specific candidates. When considering matters of policy regarding the city’s employment or hiring practices, the discussions or deliberations must be conducted in open session (O.C.G.A. § 50-14-3(b)(2)).

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