Recent events in the news again have demonstrated the pitfalls of failing to develop or adhere to a disciplined process regarding the recruitment, selection, and offer of employment to a professional or other high level employee. Whether you operate in a for profit or not for profit organization, there are certain fundamental guidelines that should be observed in order to not only engender confidence in the process and the decision that is made but also avoid potential legal claims and other adverse consequences.
The purpose of this memo is to outline these guidelines. It is neither intended to be nor can it replace detailed policies or guidelines that your organization should have in place. It is designed to be a checklist and reference to use against your own guidelines or process. Like so many things in the legal world, the process you follow is as important as the decision you make. If you find yourself on a search committee, these are things you should keep in mind:
Before You Start
1. Search Committee. A committee process offers the best vehicle for a representative and robust decision process. Size of the committee is discretionary, but should not be less than three and should draw from a group with sufficient collective background and experience to provide the requisite depth and breadth of expertise and good judgment.
(a) Members’ Role. Each member should understand his or her role and mission, the concept of equal employment opportunity, and advise of any special interest or conflict in the selection process at the outset.
(b) Members’ Understanding. Each member must know the job description, the selection criteria, and the objectives of the process.
(c) Members’ Duties. Each member must be willing to be available for meetings and interviews, follow the guidelines established, and exercise independent judgment.
2. Relevant Polices and Guidelines. The organization’s search and hiring policies or guidelines should be reviewed thoroughly, understood, and followed.
3. Confidentiality. Application materials and resumes are provided to committee members for the express purpose of assisting in the evaluation and selection process. Each committee member must understand that any act that compromises confidentiality also compromises the integrity of the committee and selection process. This needs to be a continuing point of emphasis with committee members.
4. Assessment and Capabilities Matrix. Prior to the formation of the committee, the organization should have performed an assessment or prepared a capabilities matrix that reflects the current strengths and weaknesses of the position targeted and sharpens the focus on the strengths and capabilities of the type of candidate sought. This provides a good “landscape” picture or overview for the committee as context for the search.
5. Position Description and Requirements. These requirements are pre-established by analysis and a position description. They should be considered as the minimum necessary to perform the essential functions of the job.
6. Timeline. A timeline should be developed at the outset of the process. Often, it is useful to work backward from the target start date contemplated. It is important to set aside sufficient time to perform a complete and effective search. Build extra time into the process to allow for false starts, scheduling conflicts, and the possibility of having to move on to a second or third choice.
The Selection Process
1. Personal Approach. The law requires fair consideration of all applicants. The law does not prohibit, and you can certainly use, a personal approach to recruiting candidates. Sometimes, outstanding candidates are initially reluctant to apply for advertised positions and can be approached by a search committee if identified. Of course, all equal employment opportunity and affirmative action requirements must be met.
2. Screening and Selection Criteria. The ultimate goal is to hire the “best” candidate. However, establishing who is the best candidate is more challenging. It is important to establish the criteria and rank each prior to the beginning of the process. Once established, you should generally adhere to the criteria and ranking. You can make changes if deemed necessary during the process, but it is legally important that the selection criteria and methods of assessment are applied consistently to all candidates.
3. Interviews. Committee members should be provided with interview guidelines and a list of approved questions. Committee members should receive some minimal training or guidance in how to conduct appropriate interviews and counseled about areas to be avoided. Of course, committee members can or may go “off script,” and that should be encouraged so long as each committee member understands the interview guidelines and adheres to them.
The Recommendation and Confirmation
1. Meet and Recommend. Once all of the final round interviews are concluded, all of the committee members should meet and discuss. There is nothing in the law that requires a committee to unanimously select a candidate. Sometimes, a majority is sufficient. Often, unanimity is preferred. If there is strong dissenting opinion, and members request that it be recorded “on the record,” the committee’s minutes should contain a brief statement of the discussion and the reasons for the majority’s and minority’s positions. Such information, prior to being finalized, should be reviewed by legal counsel, so that the minutes accurately reflect the process and the outcome.
2. Confirm Required Documents. The committee or Human Resources should confirm that any academic records or transcripts, diplomas, professional registrations or licenses required have been received, reviewed and authenticated for the leading candidates. Confirm that the I-9 form (with copies of verifying documents) has been or will be made available. Reference checks, criminal history checks, motor vehicle records checks, and credit checks (as necessary or required) should be complete and verified.
3. Confirm (and Confirm Again) the Decision Prior to any Offer. Once the selection is made, the entire process should be reviewed for consistency and quality. If there were any errors or doubts, now is the time to raise and resolve them while the process is still internal. Once an offer is made, the committee loses any possibility for a graceful “do over,” and may face legal action by an aggrieved candidate. If the CEO or other senior executives are not directly involved in the selection process, they should be apprised as the process moves forward and provided with relevant information available to committee members if necessary prior to any offer being made. Avoid the trap of moving forward only to be told too late that a key decision maker believes the process to be flawed or the selection decision was incorrect. Being forced to withdraw an offer or backtrack in the process is, at minimum, inefficient and may very well call into question the competence, objectivity, or motives of the organization if the action becomes public.
Post Offer and Acceptance
1. Document the Selection Process. From a legal perspective, it is important to assemble accurate and complete records of the selection process. It provides the legal basis for the decision, and it can also serve as a model for future selection processes since the committee may be entirely reconstituted the next time a selection needs to be made. Legally, employment records (including applications) must be maintained for up to three years, i.e., one year for the CRA and ADA, and three years for ADEA, FLSA, and FMLA. Your organization’s record retention program may require longer periods.
2. Welcome and Orientation. Just as you have engaged in a process for recruitment and selection, your organization should also have a standard process to welcome the new employee and provide an orientation commensurate with the organization level for which the candidate was hired. You have invested time and effort in the selection process, and it is also necessary to make special efforts to welcome and introduce the selected candidate into the organization and the community.
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