Today, Leonard Segal joins the show to talk about tactics, questions, do’s, and don’ts in hiring employees.
Leonard starts by discussing the three federal vaccine mandates: employer vaccine mandate, contract or sub-contractor mandate, and healthcare worker mandate. He mentions that only the latter is in effect. He further discusses private companies having their own vaccination policies and other Covid-10 regulations.
Reuben asks about the differences between the Covid-19 guidelines of the Minnesota Health Department and the CDC. Bill asks if employees can file legal actions for improper termination and labor malpractice in relation to the Covid-19 guidelines. Tessa asks about a return-to-work policy for sick employees.
They also talk about meaningful but legal ways to ask questions during the hiring process. Leonard mentions that Minnesota is a pro-employee state and has many anti-discrimination laws. He highlights that being consistent in the line of questioning across applicants is very important. They also talk about the use of social media in background checking.
Visit schindelsegal.com or reach Leonard Segal (952) 358-7408 or lsegal@schindelsegal.com.
TRANSCRIPTION
The following is a transcription from an audio recording. Although the transcription is largely accurate, in some cases it may be slightly incomplete or contain minor inaccuracies due to inaudible passages or transcription errors.
Bill Oelrich: This conversation is going to be about hiring tactics, and questions, and dos and don’ts, and where you can get into trouble.
[music]
BO: Welcome, everyone, you’re listening to Structure Talk, a Structure Tech presentation. My name is Bill Oelrich, alongside Tessa Murry, and Reuben Saltzman. As always, your three-legged stool coming to you from the Northland, talking all things houses, home inspections, and anything else that’s rattling around in our brain. Well, on today’s episode, we’re in the third category. We’re back to things rattling around in our brain, and we’re super pleased to have Lenny Segal back on from SchindelSegal. And last time we caught up with Lenny we were talking about vaccination mandates, and we thought it’d be a great idea to bring him back on. That conversation happened last fall, we are now after the first of the year, there’s been court proceedings, there’s been rulings, there’s been political posturing and all kinds of things that have gone on. So we thought it’d be fun to pick Lenny’s brain again and see if there’s any wisdom that employers might have, big, small, little, wide… I don’t know [chuckle] how if you wanna explain employers… Lenny, welcome. Thanks for coming back on the show.
Lenny Segal: Oh, thanks for having me. I appreciate it. Happy to talk about Vaccine Mandates, or whatever else rattles around in your brain.
[laughter]
BO: Yeah. Thank you. Thank you. Well, we are hiring, at Structure Tech, so we’re gonna… The second half of this conversation is going to be about hiring tactics, and questions, and dos and don’ts, and where you can get into trouble, but first, let’s kind of get up to speed on this Vaccine Mandate. Where do we stand? Give us the legal perspective of where everybody stands.
LS: Okay, so… And I’ll try to do this without using any legalese. You guys can tell me if I…
BO: Oh, use as much as you want. It’s this…
[laughter]
LS: Yes, I did. There’s really three Federal Vaccine Mandates, one has probably gotten the most publicity, and most recently, but there’s really three, and I’ll talk about each of the three. The one that’s gotten the most publicity is the large employer Vaccine Mandate. That was supposed to apply to all private employers with 100 or more employees. And under that mandate, those employers would either have to make sure all their people were fully vaccinated, or alternatively, getting tested at least weekly, wearing masks in the workplace, and that sort of thing. And then there were accommodations for folks with religious beliefs or medical conditions. That was before the US Supreme Court last week, and the US Supreme Court essentially blocked it and said, No. OSHA, which was administering this, overstepped their authority in issuing this Vaccine Mandate. Basically, the Court said, “Congress did not give you the authority to do that.” And so that mandate is blocked right now. It’s technically not dead, it’s technically on life support, I won’t get too much into the weeds on that, but I don’t anticipate it coming back. So that one, we’re probably done with.
LS: The second one is a federal contractor and sub-contractor mandate. So that would apply to businesses, as you might suspect, who have contracts or sub-contracts with the Federal Government. That one is currently blocked across the country as well, due to a couple of courts issuing injunctions. That has not reached the US Supreme Court yet. Eventually, it probably will as well. But right now, that one’s blocked, and so nobody has to worry about that one.
LS: The third federal Vaccine Mandate was the one for a lot of health care workers. It was really for Medicare and Medicaid suppliers, home health care agencies, hospitals, hospices, ambulatory surgery centers, there’s about 15 of them. That one also was before the Supreme Court last week, and that one, the Supreme Court said could proceed right now. And a lot of people say, “Wait a minute, why can that one proceed, but not the large employer mandate?” And it really comes down to the authority Congress designated to an agency. As I mentioned, for the large employer one, Congress did not give that authority to OSHA, according to the Supreme Court, but Supreme Court said Congress did give the centers for Medicare and Medicaid Services authority to issue its regulation, and so the CMS mandate for these health care providers is in effect, and there’s dates by which those folks have to comply. I’m suspecting most of your listeners are not in that field, so I don’t know if we wanna hit too deep on that one, but that one is the one that is in effect.
BO: I do have a question, you used the word supplier, is supplier of payment? Is that what you mean? I mean, because they’re paying for the Medicare, or Medicaid services that are provided.
LS: Yeah, no, it’s really those who are providing the services to patients, so hospitals or hospices. Generally speaking, somebody who just supplies something to one of those facilities is not covered by that mandate. Individuals might be, so if you, for example, have an individual vendor who’s [and providing services, then they might still be subject to it. But generally speaking, if you’re just a supplier, you’re not gonna be subject to that mandate. It’s the facility themselves, and all those employees that are subject to it.
BO: Okay. So I think the angle I was going with it, the government’s paying for it, so they can kind of dictate, “You want our money, you play by our rules.” Is that a fair statement?
LS: Yeah. Absolutely, yeah. And if you don’t comply, if you’re covered by that CMS mandate and you don’t comply… And I should say that one is a vaccine only, there is no option for testing and masking as an alternative, so it’s vaccine or having an accommodation due to a medical condition or religious belief. And if you don’t comply, they could terminate your contract, so…
BO: Okay.
Tessa Murry: I’ve got a quick question if I can jump in. Lenny, do you have advice for small business owners on how to handle the return-to-work policy for when people get sick? Because with this spike in the Omicron variant and everything, and coming off the holidays, it seems like a lot of people… And if you’ve got kids or whatever, people are just getting really sick. What do you recommend, what sort of guidelines should we follow to help us navigate when it’s okay to have people return to the workplace?
LS: Yeah, so the communication coming out of CDC and elsewhere has not been the model of clarity on this. [chuckle] We hear 10-day quarantines, and five-day quarantines, and masks, or testing, and it’s not been terribly clear. What I would say I’d recommend to most clients to do is you follow the latest CDC guidance. But generally speaking, what they’re saying is for folks that do get COVID, that they have to quarantine for five days, and then after that, they can kinda go back, as long as they’re wearing a mask for another five days. Or alternately, they could get tested at the end of the five-day period, and if they test positive still, then they gotta wait another five days to even go back.
LS: So that’s what they’re saying now, and then there’s different rules for… I can’t tell you exactly what… ‘Cause I always gotta go back and look at the most recent ones. But I think the latest guidance says if you’re fully vaccinated, even if you were at close contact, you don’t have to go and isolate. If you’re unvaccinated, then it’s different, and now they do want you to isolate. And so most companies are complying with those rules. And some companies, by the way, do have their own Vaccine Mandates. We’ve talked about the federal requirements, but putting those aside, many companies have their own vaccine requirements and that’s okay to do as long as you’re not in a state that doesn’t allow it. So, the Floridas of the world or Tennessees of the world, and some others that don’t allow it, you can’t obviously. In Minnesota here, if a company wants to have their own vaccine mandate, they can, as long as they have accommodations for folks with a medical condition or religious belief.
BO: Reuben, do you remember the early days of COVID where we were trying to have conversations about what a policy should be in terms of, if somebody got sick, and… We’re to the point now where we’re pointing at the MDH for guidance and say, “Follow these rules,” and if they change… But early on, this was just… I don’t wanna say we were making it up, but you were making it up to some degree, right?
Reuben Saltzman: We were always following the latest guidelines, we never made anything up there. [laughter] We followed everything to a T. I don’t know what you’re talking about. [laughter]
BO: Well…
LS: But Bill, if you remember too, back in those early days, if my memory is right, the guidance was 14-day…
TM: Yes.
LS: Whether you were exposed to it, or if you got it, I think, and then at some point it changed to 10 and then there were some different numbers along the way. And I think a lot of it is based on what they’re learning about how contagious people are, and from what I’ve read at least, it sounds like you’re most contagious those first five days, which is where this five-day number now comes from. I think some people would say… Is it really that or is it more just political pressure to say, “We gotta get people back to work quicker, we can’t have… ” especially with Omicron, like Tessa was mentioning, we can’t have so many people out for 10 days ’cause people won’t have a workforce anymore. I guess that’s a different discussion about the reasons behind it, but those numbers have certainly changed from where we were almost two years ago.
BO: Well, I just remember our approach was very, very conservative, right? We were probably over the top, but yet, it’s just nice to have a single point of reference, let the governing bodies make their changes, and as it happens, you just adjust on the fly.
LS: Yeah, and generally speaking, if you wanna be more aggressive than what the government says you can be, or more restrictive is probably a better way to put it. So, if you wanna say, “Yeah, I know they’ve said five, but we still wanna have 10.” Generally speaking, there’s nothing in Minnesota that would stop you from doing something like that. But most companies, I think, are going with what the CDC has to say.
RS: So Lenny, is there a difference between what the Minnesota Department of Health recommends and the CDC recommends? I know there’s a difference, but what should we be following?
LS: They’ve been… Minnesota’s probably been more conservative, I think, than the CDC in changing their guidelines, so I think in large part, they’ve been the same or similar, but Minnesota seems to always be a little bit behind. So, here in Minnesota, I would definitely look at what the MDH says, and to the extent it’s different than what the CDC says. Being here in Minnesota, I’d say probably follow the Minnesota Department of Health guidelines, but they are for the most part, pretty consistent, just Minnesota tends to lag a little bit behind the CDC.
BO: That’s just our pragmatic nature up here.
LS: That’s right.
[laughter]
BO: Does everybody feel like the wave is cresting and hopefully in two or three months, we’re gonna be beginning to put this behind us? At least that’s where my head’s at. I’m still hopeful.
RS: I sure hope so.
LS: I think everybody hopes, but I don’t know… Believe it when we see it, right?
BO: Yeah.
RS: Yeah. I’m back as a part of the Involuntary Homeschool Society at the moment.
[laughter]
TM: Yeah. We just hired some more inspectors for training too, and so we’re starting with that process, and we’ve hired… We’ve done three rounds of hiring and training new home inspectors since 2020, and it’s been such a challenge, because guaranteed, as soon as you start training, someone’s gonna come down with COVID, and then how do you navigate the training process with sick people? It’s a challenge to say the least, you know?
LS: Yeah, and certainly with what you guys do, if you have a home inspector or several that suddenly become sick, it’s not as easy for you just to say, “Well, we’ll just come and inspect two weeks from now, right? Because there’s other people out there, staff of. Dominos are waiting to fall and are contingent upon what you do. And I feel for organizations like yours, that it’s not so easy just to say, “Well, we’ll just reconvene in two weeks.”
TM: And you can’t work from home, there’s no Zooming in inspection, so…
LS: [chuckle] Right, you can’t… That won’t work too well, no.
BO: That is the silver lining of ebbing a little bit when everybody goes inside for holidays. Our schedule dips down this time of year, so we do have capacity if we need to make an adjustment in the last minute, so…
RS: Yeah, if there’s anybody out there listening, if you need a home inspection, we can get it done very quickly right now. I’ll tell you that.
[laughter]
LS: Your busy season is probably coming up, what? March? April? Springtime, I imagine you start getting quite busy.
RS: That’s when it starts to get busy.
LS: Yeah.
BO: Lenny, is any COVID playing out in court right now, other than at the Federal level, in these pretty high courts? Are you seeing anything happening at the local level inside a courtroom?
LS: You know, there are cases out there, nothing is at the Court of Appeals level or anything like that, that’s really kind of published decisions, but I know… Nothing that I’m involved in, but I know I’ve heard of cases throughout the country where employers are being challenged in terms of what they’re doing COVID-wise. Are they doing too much or not doing enough, you know, you got it all across the board. So, there certainly are cases floating out there across the country on those issues.
BO: Can I ask a follow-up legal question, just kind of on procedure? If me as an individual want to bring suit against an employer or something like that, typically, you can’t just call your firm and sign up, you guys don’t work for free. It seems like an expensive venture for an individual. Are there companies, are there groups that are standing behind the individual worker to support them through litigation?
LS: Yeah, no, there are. And just so it’s clear, I generally represent employers, so I’d be on the other side of that table, but there are organizations and law firms that just represent employees. And oftentimes in the employment arena, when a lawsuit is brought, many firms will front the costs or take a contingent fee or something like that. So for an individual employee, oftentimes they can bring legal actions without having any upfront cost and having very little risk, because the firm they’re hiring is gonna take a contingent fee later on. So, some of the cases that are out there, things like an employer has a vaccine mandate but allows an accommodation and the employer didn’t provide an accommodation. And some employees say, “I should have gotten accommodation, you didn’t give it to me, instead you terminated my employment.”
LS: And so there’s a potential lawsuit. So, that’s how a lot of employees can fund these things. Also, there are human rights agencies in Minnesota, it’s called the Minnesota Partner ____ Rights. Under federal law, the EEOC, Equal Employment Opportunity Commission. A lot of cities have their own human rights commissions, Minneapolis and Saint Paul, for example. So, those allow employees to bring a discrimination claim, it’s not a lawsuit, you’re not in court, but there’s no charge to do that and they can do that without having to hire a lawyer. It’s a pretty simple process to get started as well, so you don’t necessarily need a lot of money to initiate an action, you do have to have.
LS: Some facts to back you up and have a legitimate claim. That’s not to say you’re gonna win at the end of the day, but you can’t be making things up. But if you have some legitimate facts, there’s ways to do it.
BO: If I can interpret what you just said, the folks across the table from you, they know they have to have a high degree of confidence that they’re going to win before they’re gonna take that person on pro bono?
LS: Yeah. Yeah, for the lawyers who represent individuals in these types of things, before they would take something on a contingent fee, they’re gonna wanna have a lot of confidence of really two things. One is that they can ultimately liability, proving wrongdoing. And two, that there’s actually some money involved, some damages there, because lawsuits are a lot of work and take a lot of time, and the lawyer on the other side is ultimately gonna wanna get paid at the end of the day too, and they’re taking the risk of getting zero, so they want some upside if they do get a successful result, so, sometimes, when talking to my friends on that side of it, there’s somebody they feel very bad for and would like to help, but the law doesn’t support them, and so they just really can’t step in and help.
BO: Well, I think we’ve all had experiences where we think the law is one thing and it’s one way, and then you get involved in it and it’s so different, and it’s… There’s technicalities here or there that guide, I mean, I can just cite one example from a long time ago where we worked on a non-compete within my family, and it was a one-year non-compete. By the time we looked at everything, we had to make a decision, “Do you wanna fight this out and spend a bunch of money for probably three months because it’s gonna take nine months to actually get through this whole process?” And we’re just like, “No.” We made a decision to go a different way, and… So, it’s not always cut and dry, even if there should be a winner and a loser, right?
LS: Yeah. And you mentioned non-compete, I do a lot of non-compete work, Bill. And that’s where I do help individuals, but it also helps the companies, the new company that wants to hire some of the old company. But yeah, any time there’s potential litigation, there’s… First of all, there’s always two sides to a story, and my friends who represent individuals a lot, always will say, or often will say, “The best story I’ll ever hear is that first time that potential client comes in my office,” because I haven’t gotten the other side of the story yet. So, there’s always two sides, and I don’t care what kind of case it is, there is no such thing as a slam dunk case. Especially if you get in front of a jury, you just never know what’s going to happen, and I jokingly tell people, “If you have a lawyer that you’re looking to hire, that promises you a certain result in a lawsuit, you better find another lawyer, ’cause there’s no way a lawyer can promise you a certain result. It just can’t be.”
BO: I like that. That’s great advice. And just all the confidence in the world, won’t guarantee…
LS: I know the video’s in action, but Reuben, you seem to be getting some like pink lipstick there for a second. Now it’s gone. Did you guys see that too, when he was moving?
TM: I just see the sun-rays coming in and making him look like a…
RS: Yeah, I gotta close the window…
LS: You it looked like you had pink lipstick for a minute.
RS: Yeah, I don’t know what it is. Zoom does that. Zoom puts it on, watch this.
[laughter]
LS: Oh! No, it didn’t… Move to your left a little Reuben, let’s see. It’s kinda when you’re moving around, yeah, the other direction, let’s see the…
TM: It’s gotta be the lighting with the sun coming in, how it’s… [chuckle]
RS: It’s gotta be.
TM: That’s so funny.
RS: Yeah, I blame Zoom.
[laughter]
LS: If it happens again, you’ll have to put this on video then for sure, right?
[laughter]
RS: Yes.
BO: So let’s turn our attention to topic number two, because at structure tech, we always seem to be hiring, and I’ve had so many questions about what you can actually do when you’re asking questions like, how do you really get to know somebody in a meaningful way, yet legally? Lenny, I wanna ask you my first question, and then kind of let you just go with this, but how does Minnesota compare in terms of toughness when it comes to anti-discrimination or you can’t ask that question at the Minnesota State level, but you could ask it at the Federal level or some other state, let’s say Florida or Texas or something like that. Where do we stand in the “we’re tough or not tough”?
LS: I think I’d answer that this way, Bill. Minnesota is a very pro-employee state. I practiced in California back in the ’90s. California is probably the most pro-employee state, so we’re not quite there, but we’re definitely very pro-employee and so, we have a lot of anti-discrimination laws here, and oftentimes, they’re enforced in favor of employees, and by saying that, I don’t mean unfairly enforced in favor of employees. I just meant when you compare it to other states, such as Texas and that sort of thing, you could have the exact same conduct that in Texas a court might say, “That’s not a big deal. No problem.” But Minnesota is gonna look at it differently and say, “Yeah, we do think it’s a problem here.” So, Minnesota is definitely a more pro-employee state than others.
BO: Lenny, do you believe most employers are well educated on what you can ask and what you can’t ask and how you should conduct interviews?
LS: In my experience, large employers tend to be, but that’s because they have an in-house HR person, human resources person, or maybe an in-house lawyer or something like that. Small and mid-sized businesses, not nearly as well. Generally speaking, I would say they’re all well-intentioned, nobody’s really intentionally doing something improper, but it’s that old thing, you don’t know what you don’t know, and they don’t have an HR person, they don’t have a lawyer on-site or even on call to reach out to. I love to help those kinds of businesses, because I can give them a lot of help upfront, so they hopefully do most things right, because it’s a lot cheaper and a lot better to do things right upfront than to do them wrong and then have to clean up the mess later. Just like in your business, it’s a lot easier to address an issue with the house before it becomes an issue than afterwards. So, I would say if you’re talking about those larger businesses, yeah, I think they’re pretty good, but small and mid-sized ones, well-intentioned, but could certainly use some help.
RS: What are some of the most common mistakes that smaller employers make asking questions to employers, employees or potential employees getting themselves in trouble?
LS: Yeah, so there’s a lot of different anti-discrimination things and people are pretty smart, they’re not gonna ask something that’s overtly discriminatory or harassing, but I’ve seen companies do things, even at the job application stage, for example. In Minnesota, I still see some job applications that have the question, “Do you have a criminal conviction?” As of years ago, that question’s not allowed on a job application in Minnesota. So, anybody who’s listening to this and has a job application with that on there, no, certain positions, maybe it’s okay, right, if you’re applying to be an FBI or something like that, but for private businesses, that question should not be on a job application. That’s not to say you can’t ask about it later, but not on a job application. So, sometimes I see really simple things like that that are just a blatant violation. Often, it’s a lot more subtle. You have a job interview and things are going really well with the person you’re interviewing and so you just start talking about other things, and maybe you start learning about somebody’s life, and lo and behold, as you’re talking to them, you find out their sexual orientation.
LS: Or their family status or something like that, that has zero to do with the job. But all of a sudden you find out some information and what if you end up not hiring that person? That just maybe opens a potential door to that person to say, “Jeez, I thought this interview was great until they found out my sexual orientation, or until they found out I was a single parent with three kids at home. And then it changed and they didn’t hire me.” And I’m not saying that you’re gonna get sued or that you’re gonna lose a lawsuit, because hopefully in that circumstance the person you ultimately hired, you actually did higher because of better qualification skills, all of those things, but you just accidentally opened a door to something, and I’d rather not have that door open. So I think the biggest issue I see is just interviews go well and you start learning things you don’t really need to know.
RS: Interesting.
BO: What if, Lenny, what if somebody offers personal information without you asking?
LS: Yeah, and that happens quite often. I always suggest that whoever is doing the interviewing, supervisor, whatever it is, that they kinda of… And they should practice this in advance about how to move the subject to something else. So for example, they could say something like, “Hey, thank you, but that’s not really information I need to make good employment decision, so I wanna focus on what we need to know to make the best hiring decision we can,” and then go on with whatever the next question is, so you’re moving on from that as quickly as you can.
RS: That sounds really tough to do. I mean, it feels like… It feels like you’re telling them, “I don’t care about you.” I know this is important to you, but I don’t care. I would have such a tough time doing that.
LS: Yeah, it’s good to practice it, so you kinda get comfortable with it. And you can word it differently, you say, “Hey, if you get this job, I’d love to learn more about your life and whatever else, ’cause we really wanna get to know each other really well, but for our limited time during the interview I really just wanna focus on the key things to be able to make the hiring decision to make sure you are a fit for this job.” There’s different ways to word it. And every person is gonna be different in how they would do that and how they handle it.
BO: Is the most qualified person that keeps you out of hot water no matter what, right? Hiring the most qualified person. But is an employer required to document why they made the decision they made with the group of people they interviewed?
LS: Not necessarily. It’s always… From a lawyer’s perspective, it’s always helpful if there is a lawsuit to build that back and say, “Look, the person took notes at that time and said, here’s why we rejected this person, here’s why we hired this other person,” but frankly, usually, we don’t have that, but it is helpful ’cause it can show what was in your mind at the time and show that the reasons that you’re now claiming for why you rejected one person to hire another were the true reasons back then, and you’re not just making them up now to justify your decision.
TM: My mind is just going with all these things that it’s just such a tricky line to make sure you’re not crossing when you’re hiring in your… Especially in our industry, we get a lot of, I would say a lot of people that come from the trades industries that are looking to get into something that’s still physical, but not so demanding on their bodies, and I can’t even probably say this on air. I mean, we’re looking for people that want to commit to this job for a long term and are healthy and can handle the demands of this job long-term. We’re not looking for someone who’s gonna get trained and then be out in a year or two because of a major health concern and then they retire or something like that, but that’s discriminatory to even go there with someone. What if someone comes and tells us, “Well, I’ve been in this trade for a long time and my body is sore and I’m looking for something that’s easier on my body, and I thought I’d come to you guys.” What do we say to that person?
LS: Yeah, so a couple of things, you have to be really careful with health stuff. Companies always wanna know how many workers comp claims has this person been involved in before, and so like that, and you really gonna stay away from it, but generally speaking as long as you do this for everybody, you can say to somebody, “Here’s what the physical demands are for this job. We just wanna make sure can you handle those physical demands?” Technically you have to say, with or without an accommodation, ’cause if they have a disability, but if there’s an accommodation that would allow them to do it that’s still okay. But when you do that, you wanna make sure you’re asking everybody. So you wanna make sure you’re asking that of the 30-year-old person who shows up and looks like they’re Arnold Schwarzenegger in his prime, and you wanna ask that of some worker who might be 60 years old and is clearly not in as physically good a shape.
LS: So you wanna ask that question of kind of everybody. “Here’s the physical demands of the job, can you do it? Here’s the time requirements of the job. Can you sometimes work evenings? A week and whatever it is, can you meet those things?” There are even ways, and I’m gonna be a little careful in a podcast to say, because I don’t want people to go around doing it because you’ve gotta be really careful with it, but there are ways to even do conditional job offers and then potentially do some sort of medical exam, but you have to do that for everybody, and it’s really gotta be focused on just the physical needs for that job. And so, if anybody is listening to this, don’t run and do that. Get legal advice before you did something like that.
RS: Give you a call first.
LS: But if that’s a concern there are ways to do… To do stuff like that too, but you have to do it at the right time and in the right way.
TM: Yeah, what I’m hearing you saying is just be consistent with your hiring process and the questions you ask and document that. And if someone gives you that sort of information, hopefully it doesn’t turn into a liability if they’re volunteering that, as long as you’re consistent with your questions.
LS: And people make mistakes even in interviewing, I mean we’re all human. Especially when the interview is going well. You might say something later on like, “Oh man, I know I shouldn’t have asked that one.” Don’t lose a lot of sleep over it. We’re all human here. At the end of the day, make the best hiring decision, hire the best candidate. If you hire the best candidate, you’re gonna be fine. That’s the key, you’re gonna be fine, even if you did say something inappropriate. ‘Cause frankly, even saying something inappropriate in and of itself is not the legal violation, it’s then if you don’t hire somebody because of a protected class status. If you’re always hiring the best qualified person, you’re gonna be in a really good shape, even if you did make a missed step during the interview.
TM: Sure.
RS: Good advice.
BO: I could ask questions about these topics for hours on end, because I’m sure there’s little nuances that would be really helpful. But we can’t do that. Lenny, we need to be respectful of your time. So I wanna begin to wrap this, but are any pearls of wisdom you wanna throw out to anybody who’s listening, just… How to stay between the guardrails. And other than be consistent, do the… Whatever the hiring process is, I suppose it should be the same every time. If it’s a four-step process, it should always be a four-step process.
LS: Yeah. Be consistent is big. You could have a canned list of interview questions and that doesn’t mean… You don’t wanna be a robot when you’re interviewing, you just list each question because you wanna hear what the person’s saying, right? And based on their answers you might pivot to different things. But if you have kind of a script or a list of questions that really are the most important things you need to get out of that, then you’ll have some consistency across your organization, whoever’s doing these types of interviews. I even encourage people to get some advice upfront whether that means an HR professional, an employment lawyer. The internet can be a great source. Just be careful because whatever source you’re looking at, A, if you’re in Minnesota, make sure it’s actually Minnesota law and not some other state’s law, and B, make sure it’s actually relatively recent, it’s not something that was from 10 years ago that may have been perfectly appropriate 10 years ago, but it’s totally off base today. But there’s a lot of resources out there. Sometimes if you’re a member of an organization, like Human Resource Organization or you might have through your insurance company, employment practice, liability insurance, they might have some good resources as well too. And I think it’s like anything else, just educate yourself first rather than jumping into the deep end right away.
BO: One thing I know it’s in fashion right now are taking spouses out when you’re close to making a hire. It’s like, “Hey, let’s all go out to dinner and just get to know each other.” How do you feel about that from the chair you sit in?
LS: Yeah. So usually when I see stuff like that, it’s only for higher level people and things like that and much more in-depth types of interviews. Generally speaking, I’m okay with that with the caveat that, “Be careful of all those inappropriate questions.” Now you’re in a much more relaxed environment and probably a longer environment, right? You’re going out to dinner, so it might be a couple hour period, so just be a little bit careful of that stuff. Also now you’re meeting the spouse and make sure you’re making hiring decisions based on the candidate, not based on the spouse. Because here in Minnesota, for example, there is a protective classification based on marital status, so you don’t wanna actually do something based on the spouse or make a decision based on the spouse ’cause you might run afoul of that rule. So just… It’s okay to do it, just make sure you’re still being careful. Remember it’s, even though you’re not on the work site, it’s still a business interview.
BO: That’s awesome. Thank you.
TM: So two drink minimum is what you’re saying?
LS: Two drink minimum. That’s right.
[laughter]
BO: Oh Tessa that’s perfect. Hey, Lenny, I do need to ask about this before we wrap things up. Social media scrubs, this seems to be… Everybody wants to go troll you on social media. Any recommendations or advice for employers when working with social media?
LS: Yeah. I would say two things. One, don’t false friend somebody on Facebook or whatever. You don’t wanna go and get into kind of some private areas by faking being a friend. To the extent you do look at public sources, whether it be Facebook, LinkedIn, or whatever, TikTok, all those types of things, you can learn a lot of information about somebody, but you can also… Good information, but you can also get a lot of things that you don’t need as part of the hiring process that could create issues. So for example, if you go and look at somebody’s Facebook profile, you very likely will be able to find out their gender, their race, maybe their sexual orientation, maybe their religion, things like that, either based on them actually saying it or based on groups they’re affiliated with.
LS: And so I would encourage you to the extent you do those types of searches, if possible have somebody who’s not involved with the hiring process do that research and then they can only provide relevant information to the people making that hiring decision. So they would say… If you’re looking at somebody’s profile and they get all this information on somebody, they pass on to the hiring person, “Hey, this person’s worked for X, Y and Z companies, here’s their skills and all that.” They don’t pass along information about what sexual orientation the person is or what religion they are or what race they are or anything like that. So it separates that person from the hiring person. I think that’s really important. If you’re large enough to be able to do that. Obviously if you’re a one or two-person company, that might not be realistic, but if you can, I’d recommend that.
BO: We’ve been in a lot of situations where we’ve been around a lot of business owners who do scrub Facebook and Insta looking for all those different things and boy, it could be a tricky situation.
LS: Yeah and a lot of companies do that now. The other thing too is you can always hire some third-party background check companies too to do some background check. There’s a lot of notice requirements to an applicant for that under both federal law and Minnesota law. You can always hire a third party to do a lot of background check stuff too, but yeah, a lot of companies do that. I would say for employees or individuals who might be listening to this, be careful what you put out there and be careful what your friends are posting. It may be very funny to have some friend of yours post that picture from you in college 20 years ago when you were drunk under a table or something like that, but do you want some potential employer seeing that? Probably not. So I always tell employees, “Be careful what’s out there. Know what’s out there about yourself. Use those privacy settings in the various social media so you’re to an extent you can control what’s out there about you.
BO: One last very specific question as it relates to socials. I once heard in a job interview, “Hey, listen, if I went out and looked at your profiles, am I going to see anything that you wouldn’t want me to see?” Is that a question that’s a fair question to ask in a job interview?
LS: Is it fair? Yeah. There’s nothing inherently wrong about asking that question. It’s a little bit of I gotcha question because as the recipient said, “Well, what do you mean by that?” “Is there gonna be something out there?” “No, there’s nothing of me being drunk and engaging in very inappropriate type of behavior or something like that, but I don’t exactly know what you mean that you won’t like to see.” So I think it’s a really tough question for a recipient to respond to, but is it inherently inappropriate? No.
BO: Okay. Well, fair enough. I appreciate that. I did not ask that question for anybody who’s wondering if I’m asking the question because I asked the question.
[laughter]
LS: And I’ll tell you, I do training on hiring stuff too. I’ve gots do’s and dont’s. And some companies ask those questions, “If you were a tree, what kind of tree would you be?” Those types of questions are perfectly fine. I don’t ask those questions. I don’t know what a good answer to that question is, but some people probably do and feel like, “Hey, the type of personality we want has to be this type of tree.” I don’t know, but there’s a lot of different things out there. And I think when you’re interviewing, really focus on what do you need to know for this job, what skills, what qualifications? When you’re talking to the person, do they seem like there’s a good rapport with them, a good fit? Those types of things. And you will make mistakes. You’re not always gonna hire the right person. I wish I could give you the magic bullet to say, “This is how to always hire the right person,” but I’ve never discovered it.
BO: Well, it’s like we’re looking for the secret pill because we’ve all built cultures inside of businesses and you hate to bring in an individual that just destroys culture or something like that, but it feels like to really get to culture, you have to ask some of these personal questions and so now you get onto thin ice and you gotta be careful of how far you walk out.
LS: Yeah. But you can ask… Bill, you can ask people what they like to do in their spare time, what activities, stuff like that. If you really wanna be careful, you preface it by saying, “Hey, tell me other things I wanna do. I don’t wanna know about religious organizations or anything like that, but what activities do you like to engage in?” “Oh, I’m a skier in the winter time, I play baseball,” those types of things. Those are appropriate things to be able to ask about.
BO: Awesome. Well, this is like a training session. It’s a on-pod training session, so Lenny, thank you very much.
TM: Scared the crap out of me and I feel like we need a more in-depth training. Reuben, do you wanna line that up for us?
[laughter]
RS: We may have to do some of that. Yeah. [chuckle]
BO: Well, why don’t we do this? For now, why don’t we put a wrap on everything with today’s conversation? Again, you’ve been listening to Lenny Segal. Lenny is with SchindelSegal. Where are you guys, St. Louis Park?
LS: St. Louis Park near the west end.
BO: Perfect. You can go onto schindelsegal.com and you can find anything you want to learn about Lenny and ask him questions. All his contact information is there. We will also link up all the appropriate contact information. So Lenny, thank you again. You’re a wonderful resource and we’re lucky to be able to just tap into your mind and kind of ask these questions as vaccine mandates unfold. And employment law is not a simple thing, so we really appreciate you coming on.
LS: You’re very welcome, Bill. Anytime.
BO: Awesome.
RS: Thank you, Lenny.
BO: Yeah. Everybody out there, you’ve been listening to Structure Talk, a Structure Tech presentation. My name is Bill Oelrich, alongside Tessa Murry and Reuben Saltzman. Thank you for listening and we’ll catch you next time.