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Law firm recruiters are typically valued for their ability to bring on board the best, brightest, and most-qualified applicants. But as gatekeepers, they also are charged with the sometimes difficult task of identifying and avoiding applicants who might prove disingenuous, unsuitably qualified, or potentially damaging to the workplace. While a great hire can enhance a firm’s reputation, an unwise hire or rejected candidate can be embarrassing, difficult to get rid of, and potentially harmful to the health of a firm. Part of the problem is that there is simply an abundance of candidates, many of whom are qualified. Applications flood in from law students seeking to take advantage of summer programs that can lead to eventual full-time employment. Out of these summer program applicants, firms on average accept perhaps one in 15. But because law students do not necessarily have a career history to investigate, applicants are typically gauged solely on the basis of a résumé and interview. Often, firms perform little or no due diligence on these applicants, and as a practical matter, do not do a rigorous reference check. On the other hand, firms look very closely at attorneys from other firms who seek — on their own or through headhunters — to make lateral moves into partner or associate slots. The hiring firm generally performs a comprehensive study of the applicant, checking references, investigating possible conflicts of interest, and weighing the value and fit of any clients they may bring with them. While those two groups of applicants represent opposite ends of the hiring spectrum — and present different challenges for the law firm placement professional — it is incumbent upon those who bring in new talent at any level to provide and follow consistent hiring practices. Conscientious recruiters will have policies and procedures in place not only to ensure that the best hires are brought on board, but also to protect the firm from deceitful applicants who may have been hired, and from vindictive ones who were not. ESTABLISHING A PAPER TRAIL While the importance of a paper trail should be obvious to anyone in the legal profession, it cannot be overstressed as one of the most important characteristics of a safe hiring process. For example, should an unpleasant surprise about an employee’s past emerge in the future, a firm is in a much stronger position to dismiss that employee when they have a written record of the applicant’s prehiring claims. In other words, if an employee lies, it is much better to have that lie on paper. It is equally important to keep careful records of those who were not hired. Should an applicant take issue with his or her rejection, a firm must be able to demonstrate a fair, uniform, and even-handed hiring process. Careful management is the key. That means implementing standard application procedures and sticking to them from the very beginning. • Track résumés. Some firms receive hundreds of résumés a year, and applicants from law schools typically outnumber laterally moving applicants by at least five to one. Even though firms are not hiring most of the time, they can protect themselves by tracking and maintaining every résumé and application. Firms should keep all résumés and enter them into a database. At a minimum, firms should track applicants when actively hiring. And they should provide a letter of response to each and every applicant. It is imperative to document every step of the hiring process to be able to demonstrate why and how hiring decisions were made. • Establish an application process. A firm cannot deal with hundreds of résumés — and the resulting applications — in a fair and effective way without a consistent application process. Firms need to create one and use it. • Unbundle federal data. Law firms that are government contractors are required to collect government-mandated statistics on gender and race. Because many firms, depending on work flow, may or may not be considered a government contractor at any given time, firms often collect that federally mandated information automatically. Consequently, it is imperative to keep the supplemental data sheet on which that information is collected physically separate from the résumé and other parts of the application to avoid any perception of bias based on that data — and to inform applicants that the data will be kept separate. • Include a pre-employment statement. Firms should create a standard document that clearly outlines and describes the parameters of the hiring process, including the general conditions of employment, and require all applicants to read and sign it. The statement should detail any contingencies, such as receipt of satisfactory references, that may affect the hiring decision. It should spell out penalties for misrepresentation or omission of information furnished by the applicant. And it should release the firm, former employers, and personal references from liability for any information they may provide in the hiring process — and during and after the term of employment. • Know the law. While this sounds like a no-brainer for people in the legal profession, the fact is that the use of public records — such as criminal and arrest records — in making employment decisions is highly regulated and varies widely by jurisdiction. Information that may be used as a decision factor in one office may not be permitted in another. GOOF-PROOFING INTERVIEWS Employers can help to protect themselves by extending the paper trail to the interview process. That means designing a standardized form that interviewers fill out when they perform an interview. It should be short and simple, and provide a way for an interviewer to rate a candidate’s skills, attributes, and presentation as objectively as possible. A numerical scale of rating for things such as communications skills, professional demeanor, writing ability, and long-term professional goals can provide a relatively effective means of helping an interviewer assess a candidate — and still give a measure of protection to the interviewer by not compelling him or her to record specific details. Given the wide range of local, state, and federal employment discrimination laws, even attorneys need guidance when interviewing. While selection of questions and how they are asked can be controlled in printed format, they also must be instituted in verbal communications with prospective hires. Interviewers need to be taught which questions are appropriate to ask, and what the appropriate way is to ask them. Asking only job-related questions in a nondiscriminatory manner can help minimize legal exposure on a number of fronts — as well as help prevent applicants from revealing personal details that interviewers for legal reasons are better off not hearing. This pertains equally to those who are hired and those who are not. WHAT IS FAIR GAME? On the most basic level, questions that in any way address race, color, religion, national origin, gender or sexual orientation, age, marital status, disability, or any other protected class status are strictly forbidden. If it were that simple, one would need to say no more on the subject. But interviewers also have to make sure they do not ask any questions that could indirectly or unintentionally elicit this sort of sensitive information. Significantly, the intent of the employer or interviewer is not relevant in assessing the presence of discrimination in employment decisions. That means that the more questions a firm can standardize and vet beforehand, the better off it will be should an applicant or employee take issue with a decision. Examples of acceptable and unacceptable questions — for both interviews and for applications — include: Acceptable: “Have you ever been convicted of a crime?” Unacceptable: “Have you ever been arrested?” Acceptable: “Are there limitations on your availability to work?” Unacceptable: “Does your religion prevent you from working weekends?” Acceptable: “Do you have the legal right to work for any employer in the United States?” Unacceptable: “Of what country are you a citizen?” Acceptable: “State your name.” Unacceptable: “State your maiden name.” Interviewers also must be sensitive to free-form questions that could elicit potentially discriminatory information. As a rule of thumb, all requested information should be strictly relevant to the specific position to be filled. If questions about foreign language skills are asked, for example, they must be salient to the job. The National Association for Law Placement (NALP), which focuses on career planning and recruitment, has codified a set of broad precepts for recruiters to follow in their hiring practices. The NALP guidelines, which stress the need to base decision-making solely on bona fide, job-related occupational qualifications, also address issues related to other salient background factors, supervision of the process, and applicant information safeguards. The organization’s guidelines for employers are contained in its “Principles and Standards for Law Placement and Recruitment Activities,” which is available at www.nalp.org/pands/pands.htm. Remember: While it is important for firms to create a standardized hiring process, there are legal implications to having that process, and recruiters must exercise extreme care in implementing it. Amy Simmons is the marketing and recruitment manager at the Washington, D.C., office of Epstein Becker & Green, P.C.

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