CONDUCTING A JOB

ANALYSISB E S T P R A C T I C E S F O R R E S U LT S A N D

C O M P L I A N C E

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AGENDA

• Complete a job analysis using the best current practices, as the basis for the construction of a legal selection process.

• Deploy your selection process, using information from the job analysis.

• Manage your selection process results.

• Ensure your process meets regulatory standards.

• Address legal department concerns.

JOB ANALYSIST H E S T U DY O F T H E W O R K R E Q U I R E M E N T S A N D A P P R O P R I AT E PAY L E V E L S O F A PA R T I C U L A R J O B

http://www.whatishumanresource.com/job-analysis-methods

JOB ANALYSIS - METHODS

– The development of a strong selection process starts with the understanding of the job requirements through the following methods:

• Observation• Work Sampling• Employee Diary/ Log• Interviewing• Questionnaires• Critical incident technique• Functional Job Analysis (DOL standard practice)

INTERVIEWING• What is the job being performed?• What are the major duties of your job position? What exactly do you do?• What physical locations do you work in?• What are the education, experience, skill, and [where applicable] certification and licensing

requirements?• In what activities do you participate?• What are the job’s responsibilities and duties?• What are the basic accountabilities or performance standards that typify your work?• What are your responsibilities? • What are the environmental and working conditions involved?• What are the job’s physical demands? The emotional and mental demands?• What are the health and safety conditions?• Are you exposed to any hazards or unusual working conditions?

Job Analysis Questionnaire• Materials and equipment used• Financial/budgeting input• External and internal contacts• Knowledge, skills, and abilities used• Working conditions• Duties and percentage of time spent on each• Work coordination and supervisory responsibilities• Physical activities and characteristics• Decisions made and discretion exercised• Records and reports prepared• Training needed

FUNCTIONAL JOB ANALYSIS: FOCUS ON DATA, PEOPLE, AND THINGS

1. goals of the organization, 2. what workers do to achieve those goals in their jobs 3. level and orientation of what workers do 4. performance standards5. training content

WHICH ONE IS BEST?

No specific job analysis method has received the stamp of approval from the various courts in all situations. In dealing with issues that may end up in court, care must be taken by HR specialists and those doing the job analysis to document all of the steps taken. Each of the methods has strengths and weaknesses, and a combination of methods generally is preferred over one method alone.

DEVELOP ING YOUR SELECT ION PROCESSK N O W I N G T H E R E Q U I R E M E N T S F O R T H E J O B , L E A D S YO U T O C R E AT I N G A S E L E C T I O N P R O C E SS

INFORMATION NEEDED TO SELECT THE BEST CANDID ATE

Skills

Behaviors

Education

Experience

Candidate requirements

Based on your job requirements, what information is needed to evaluate your candidates?Job Requirements

A. Summary of Position

B. Job Duties

C. Computer Skills and Software

D. Reporting Structure

Employee Requirements

A. Education and Training

B. Skills and Aptitudes

C. Environment and Physical

D. Licenses/Certifications

HOW WILL YOU COLLECT THE INFORMATION?

Application Resume Phone

interview

Skills testing

Job fit assessment

Cultural Fit assessment

In person interview

Reference Checking

Offer

Applicant tracking system or manual process?

What skills need to be tested? (those required to perform work on first day of employment)

What behaviors need to be evaluated and how?

How will experience be gathered? (references and / or resume)

How will education be captured and verified?

What level of importance is placed for each component of the process?

What is the intent of the process? Screening in or screening out of candidates?

G O A L S : M A K I N G T H E P R O C E SS O B J E C T I V E A N D I D E N T I F I C AT I O N O F T H E B E S T C A N D I D AT E S

Best Candidates

5% screened out from phone

interview

10% screened out for

lack of job fit

30% screened out for lack of skills

1. Creating a level field for all candidates is the goal for any selection process

2. Identify any potential hurdles for ANY candidate that may apply

3. Ensure the use of technology does not unintentionally screen out your best candidates.

4. Identify clear expectations for the process

TO BE SURE YOUR HAVE THE RIGHT PROCESS….

VALIDATIONI S YO U R P R O C E SS T R U LY J O B -R E L AT E D ?

https://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1607.xml

UNIFORM GUIDELINES ON EMPLOYEE SELECTION PROCEDURES• Applicable race, sex, and ethnic groups for recordkeeping• Evaluation of selection rates.• Adverse impact and the “four-fifths rule.

– If there is no proven adverse impact of the selection process, then the individual components are not evaluated.

– If the selection process if found to have adverse impact, then the individual components will be called into question.

DATA REQUIRED TO SHOW VALIDATIONCRITERION-RELATED VALIDITY

• study should consist of empirical data demonstrating that the selection procedure is predictive of or significantly correlated with important elements of job performance

CONTENT VALIDITY

• study should consist of data showing that the content of the selection procedure is representative of important aspects of performance on the job

VALIDITY

CONSTRUCT AND CONTENT VALIDITY

• validity analyses are used to determine how well the items, measure the construct (e.g. typing ability, leadership skills, etc.) in question

• how well that construct is defined by the set of items

CRITERION-RELATED VALIDITY

• compares the results of an assessment with desired outcomes

• compare the score or scores on the test to an observable, quantitative, and meaningful measure of job performance

CRITERION VALIDATION PROCESS

Selection process Results

PERFORMANCE MEASURE

CRITERION VALIDATION REPORTING1. User(s), location(s), and date(s) of study2. Problem and setting3. Job analysis or review of job information.4. Job titles and codes.5. Criterion measures.6. Sample description.7. Description of selection procedures8. Techniques and results.9. Uses and applications.10. Source data.

CONTENT VALIDITY REPORTING1. User(s), location(s) and date(s) of study2. Problem and setting.3. Job Analysis4. Selection procedure and content5. Relationship between the selection procedure and the job6. Uses and application

CONSTRUCT VALIDITY REPORTING1. User(s), location(s) and date(s) of study2. Problem and setting.3. Job Analysis4. Job titles and Codes5. Selection procedure 6. Relationship to job performance7. Uses and application8. Source data

IS IT LEGAL?E N S U R I N G T H E P R O C E SS E XC E E D S A L L R E G U L AT O RY S TA N D A R D S .

TYPES OF DISCRIMINATION

• Disparate treatment– Requires proof of intent to discriminate– The employer treats some people less favorably than others because of their race, color,

religion, sex, age, disability, or other protected characteristic– Liability depends on whether the protected trait actually motivated the employer’s decision

• Disparate impact – Does not require any proof of intent– Involves an employment practice that is facially neutral in its treatment of different groups

and in fact falls more harshly on one group than another and is not otherwise justified by business necessity or other defenses

EEOC-ENFORCED FEDERAL LAWS• Equal Employment Opportunity Commission enforces the federal civil rights employment

discrimination laws. • Title VII of the Civil Rights Act of 1964

– Race, color, sex, pregnancy, religion, national origin– Prohibitions against both disparate treatment and disparate impact – Use of neutral selection devices most commonly challenged as disparate impact

• Americans with Disabilities Act– Prohibits discrimination on the basis of disability– Disparate treatment– Disparate impact– Class cases are difficult for plaintiffs and are very rare

EEOC-ENFORCED LAWS

• Age Discrimination in Employment Act of 1967– Disparate treatment– Disparate impact is more narrow than Title VII

• Reasonable factor other than age defense• May not apply to hiring• Burdens of proof are more favorable to employers

• Equal Pay Act– Prohibits sex discrimination in pay if certain conditions exist– No disparate impact– Any other factor other than sex defense

OTHER EEOC-ENFORCED LAWS• Genetic Information Nondiscrimination Act

– Prohibits discrimination because of genetic information. – Genetic information includes family medical history– Does not prohibit disparate impact discrimination

TITLE VII DISPARATE-IMPACT BURDENS OF PROOF• 1. A plaintiff must prove that an employer uses a particular employment

practice that causes a disparate impact on the basis of a prohibited factor, such as race or gender. 42 U.S.C. 2000e-2(k)(1)(A)(i).

• 2. If a plaintiff proves disparate impact, the defendant must then prove that the employment practice “is job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-(2)(k)(1)(A)(i).

• 3. If the employer satisfies its burden, then the plaintiff can prevail if it shows that the employer refused to adopt an available alternative employment practice that has a less disparate impact and serves the employer’s legitimate needs. 42 U.S.C. § 2000e-(2)(k)(1)(A)(ii) and (c).

FOUR-FIFTHS RULE & STATISTICAL SIGNFICANCE• A selection rate for any race, sex, or ethnic group which is less than four-

fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact. 29 C.F.R. § 1607.4(D).

• Statistical significance – Greater than two or three standard deviations– Regression analyses

• Practical significance

UNIFORM GUIDELINES ON EMPLOYEE SELECTION PROCEDURES (UGESP)

• 29 C.F.R. § 1607 - Legal standards that govern the use of selection devices like tests• When analyzing whether the use of an employment test has violated Title VII, the focus of the

inquiry is on whether the test as applied to a specific set of individuals seeking a specific job has produced a disparate impact that is not job related.

• Any selection procedure that has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory unless the procedure has been validated or otherwise complies with UGESP. 29 C.F.R. § 1607.3A.

• Whether a test or other selection device causes a disparate impact and the use of a test or other selection device is job-related or otherwise lawful are specific to the employer and not to the test itself.

• Users of selection procedures are responsible for compliance with UGESP• Good faith reliance on UGESP provides a defense to any claim. 42 U.S.C. § 2000e-12(b). • UGSEP and other EEOC regulations require record keeping

EEOC INVESTIGATIONS

• Charge– Aggrieved person– Commissioner’s charge– Organization charge

• Investigations– Requests for information – may include request for electronic data and other records and electronically

stored information– Onsite visits– Witness Interviews & sworn testimony– Subpoenas– Validation studies as a defense

• Reasonable cause determinations & conciliation

EEOC LITIGATION

• No class certification required• All settlements are public• Disparate-impact cases are a priority• Compliance with UGESP is a defense

EEOC STRATEGIC ENFORCEMENT PLAN• “The EEOC will target class-based recruitment and hiring practices that discriminate

against racial, ethnic and religious groups, older workers, women, and people with disabilities.”

• “Racial, ethnic, and religious groups, older workers, women, and people with disabilities continue to confront discriminatory policies and practices at the recruitment and hiring stages. These include exclusionary policies and practices, the channeling/steering of individuals into specific jobs due to their status in a particular group, restrictive application processes, and the use of screening tools (e.g., pre-employment tests, background checks, date-of-birth inquiries). Because of the EEOC's access to data, documents and potential evidence of discrimination in recruitment and hiring, the EEOC is better situated to address these issues than individuals or private attorneys, who have difficulties obtaining such information.”

DEFENSES TO EEOC INVESTIGATIONS AND LITIGATION• EEOC has investigated and litigated many cases that involve the use of

selection devices like and including tests.

• Defenses– Lack of adverse impact

– Validation studies

DOCUMENTATION

1. Is the selection process reflective of the requirements of the job?2. Are the tools being used in the process valid and reliable?3. Is there data to support the validation?4. Is there any adverse impact resulting from your selection process?5. Are you collecting appropriate data?

QUESTIONS?