BOP Newsletter Winter 2019

BOP NEWSLETTER • Winter 2019

The Art of Interviewing

by Tim Twigg & Rebecca Boartfield

No management function is more important than hiring the right people. Without the right people, everything else declines, like productivity, customer satisfaction, profits, and happiness. And what goes up? Your stress! Nothing brings on stress (and drama) quite like having an employee that does not fit.

Did you know that the number one reason for turnover is lack of fit, coupled with misunderstandings? You know the reasons: the employee’s not a team player, not motivated, can’t multi-task, doesn’t pay attention to detail, isn’t good with customers, doesn’t hold themselves accountable for their actions, etc. The list could go on and on.

Turnover is costly, emotionally and financially. Studies indicate that at a minimum, the cost is equivalent to the annual salary of the person who is being replaced, but it can be as much as two to three times that amount depending on the position, the applicant pool, the job market, etc. Wouldn’t it be great to reduce that cost and get the right people onboard the first time?

One way to combat this problem is to answer the following questions before you begin the hiring process:

  • Why are we hiring for this position?
  • What are you looking to achieve or accomplish with this hire?
  • How does this align with and support your vision?
  • What’s positive and negative about the workplace culture?
  • How are you going to ensure/support this person being successful?
  • What needs to be known about working with and for you?
  • What is the career path for this role?
  • How will performance be measured?
  • What are the traits/characteristics that lead to success and failure?
  • What are some of the challenges related to the role?
  • Do you have a comprehensive, updated job description for the position outlining the essential functions?

This forces you to really think about, or flesh out, what you need/want and can help facilitate the creation of job advertisements and interview questions – all of which will increase your likelihood of getting this right the first time.

There can be a lot of reasons that account for bad hires. A primary reason is poor interviewing techniques. When was the last time you actually prepared for an interview as opposed to just “winging it”? You know, you have a handful of questions you love to ask and you haven’t ever taken the time to go much beyond them and then you use your “gut instinct” and hope everything turns out alright.

If this is working for you, great. If not, you might want to consider fine tuning your interviewing techniques, and specifically the type and kind of questions you ask. This can help you get closer to knowing the “real person” during interviews and determining if s/he would be a good “fit.”

A major interviewing pitfall is not allowing the applicant to talk very much. Instead you think that your role is to “sell” them on you and your business-wrong. The interviewee should do about 75-80% of the talking. Interviewers sometimes get uncomfortable with silence or when an applicant struggles to answer a question. When this happens, the interviewer will sometimes take over and explain, describe, provide his/her own opinions to promote more conversation. This can have the effect of leading the applicant into knowing what to say or simply agreeing with the interviewer, which does not serve the purpose of getting to know the applicant. You’ve just confirmed your own thoughts and/or feelings, not his/hers.

Another pitfall is asking too many yes/no questions. These types of questions will not provide information for you to evaluate his/her fit within your business adequately; in fact, the answers will often be misleading. For example: “Are you a motivated person”? Who couldn’t get that question “right”?

Ideally, keep the questions open-ended to keep the interviewee talking. You want to collect as much data on this person as possible. The best way to do that is through carefully crafted interview questions that go beyond simple yes/no responses.  

When crafting questions make sure they are legal. Generally speaking, if a question is not related to important or essential job duties, skills, or work behaviors and attributes, it should not be asked. Under multiple federal and state regulations, it is unlawful to discriminate against applicants based on their race, ethnicity, national origin, religion, sex, pregnancy, age, or disability, just to name a few.

Raising a topic or asking a question pertaining to any of these protected characteristics could be perceived as discriminatory, particularly if the applicant believes s/he was denied employment opportunities as a result. The art of interviewing means knowing what legally cannot be asked in order to prevent potential liability.

Avoid questions or conversations related to:

  • Marital and/or family status
  • Age, or any indirect means of determining someone’s age such as learning his/her high school graduation date
  • Race and color
  • Sex
  • Birthplace or citizenship
  • Military record
  • Ancestry or National Origin
  • Credit rating
  • Affiliated organizations
  • Kids and/or relatives

Bottom line, ensure that all questions are job-related and eliminate any that serve no purpose in determining someone’s ability to perform his/her job duties.

Interview questions typically land in one of five categories: 1) Credential = education, certification, licensure; 2) Technical = knowledge necessary for the job (e.g. computer software); 3) Experience; 4) Opinion = self- evaluation; yields the candidates opinion about a given situation; and 5) Behavioral = work-related, behavioral responses from the candidate’s past. 

The table below illustrates the percentage of each type for most interviews:  

Notice the high percentage of opinion questions in the typical interview. What could be wrong with putting so much emphasis on those types of questions? Simply this: the person being interviewed would give an opinion that s/he believes you would find more favorable even though that’s not the “real person” s/he is. Without the right questions, acing an interview can be easy with an experienced interviewee who knows the right responses to give to each answer.

The table below illustrates the recommended interview question mix:

Note the emphasis on behavioral-based questions. Different from opinion questions, although frequently confused with them, behavioral-based questions focus on past behavior from real work-related experiences to determine an applicant’s future behavior. Because the underlying premise is: past behavior is the best predictor of future behavior. It is this information that allows for greater understanding of the “real person” behind the interview and whether or not that person will be the right fit for you.

Behavioral-based questions typically begin with the words: describe, explain, tell me, or how did you, which focuses on present or past situations, rather than would you, could you, should you, or will you, which focus on the future and are opinion-based.

Behavioral-based questions require preparation on the part of the interviewer before they can be effectively implemented. That is because the interviewer must identify a situation, or situations, relevant to the position to be filled that are key job competencies and behaviors which, if not handled well, would result in job performance dissatisfaction. For example: high stress, angry patients/customers, multi-tasking, fast-paced, and detail-oriented.

From these job competencies or behaviors, questions are then formed to specifically target gathering this information from the applicant’s past. Here is an example of a behavioral-based question:

  • People aren’t always busy at work. Describe the slowest time at your last job. What action did you take? What was the result? And when I check your references, who can I verify that with?

In this case, the behavior or job competency desired is being able to fill slow time at work and to keep busy with relevant duties and responsibilities. During the interview, the applicant must recount a previous specific time in which it was slow, and then state his/her response to the slow time and the result of his/her behavior.

Be mindful of the applicant stating an opinion rather than a real situation. You’ll often know this has happened because s/he might say something like, “If it were slow at work…” Key word: if. This is not a factual account of a real situation; it’s a hypothesis and an opinion. Re-direct the applicant to respond with a real situation to answer the question.

The most important component to these questions is how an applicant acted in response to the situations. People’s core behaviors and responses change very little, so knowing what someone has done will likely represent how someone will do in a same or similar situation. Some aspects to consider are:

  • Was the action well thought out?
  • Does the person hold him/herself accountable or responsible for anything?
  • Was the action immature?
  • How closely does the action match your desired response in a similar situation?
  • Did the action create improvement or not?
  • Does the applicant relate his/her action to the result, whether good or bad?
  • Is s/he blaming others?

Be sure you allow the applicant time to recount the situation from his/her past. It may take some time, there may be some awkward silences, and you may have to push a little. Not being able to answer the question at all is a red flag. Whatever you do, don’t over-explain the question and lead the person to a proper response.

Finally, because the person is stating real facts from real events and providing the reference information, you set the stage for more effective reference checking. In many cases, simply asking for references will cause a person to tell the truth, regardless. Liability issues don’t typically present themselves when you’re confirming information with a reference instead of trying to solicit information.


Can you do more than you may be doing currently to better interview candidates? Yes. Improving your interviewing skills, and specifically incorporating a high percentage of behavioral-based questions, is essential to that process. Interviewing in this manner is not as easy as “winging it” with your favorite opinion-based questions, but it will prove to be more effective. Nothing feels better than getting the right person on the team. Everybody wins; you, your business and the applicant.

Bent Ericksen & Associates • 800.679.2760 •


Q: We are a dental practice. As dentists, we are required to take continuing education courses in order maintain our license to practice. As such, we end up closing the practice throughout the year for us to attend continuing education events. In most cases, employees are off during this time as well. Our problem is the fact that employees will also end up being off for their own vacations, per our vacation benefit. You can imagine, between our time off and theirs, this can really add up. Is there a way we can require employees to use their vacation time when the practice is closed?

A: As a discretionary benefit, nothing prevents you from specifiying the rules for when this benefit can be used by your employees. Therefore, if you want to implement a policy that requires the vacation benefit to be used during your time off, you certainly can.

There are two ways you can do this: 1) Require all available vacation to be used during your office closures, or 2) Require 50% of all available vacation to be used during your office closures when employees have more than 1 week of time available.

In either case, you must have a policy that outlines this requirement implemented with your staff before enforcing it. This could also not be implemented retroactively. This policy change would only impact future closures.  

Q: I have an employee who is not doing her job very well, and I need to address it with her. In the past, when this has happened, I’ve written employees up, which is my plan with her. I don’t feel very confident in my skills of writing the counseling form. Could you give me some tips?

A: As you suggest, written warnings are meant to help document employee behavior or performance problems, but if they fall short, it won’t be helpful. Here are some guidelines for you to consider:

  • Be specific about the offending conduct. For both the manager’s and employee’s benefit, include details about what exactly happened to prompt the warning.
  • Provide the real reason for the warning, not the reason that sounds better. For example, employers might say “personality fit” is the problem, rather than “threatened co-workers.” The employee should know for certain what he or she did to prompt the warning.
  • Connect the employee’s conduct to the company’s policies. 
  • Describe the impact of a policy violation if the effect is readily ascertainable. For example, an employer might choose to describe the financial loss because of an employee’s actions. Employees should know how their actions affect their co-workers and the company at large.
  • Avoid unneeded commentary. Keep the discussion focused on the specific wrongdoing. Bringing up other matters may make it hard for the employee to focus on what’s important and what he or she needs to do to get back on track. Plus, extra commentary could expose employers to other legal problems depending on the nature of the comment(s).
  • Avoid legal conclusions. For example, if an employee is facing discipline for violating the employer’s anti-harassment policy, identify the specific policy violation rather than including generalized statements about the employee harassing or discriminating against other employees. Such statements could unnecessarily offend the employee and may not be true from a legal perspective. Policy violations do not necessarily mean there was a legal violation.  
  • Don’t attach supporting documents. Providing supporting documents in addition to the warning can be overkill. Don’t make the interaction with the employee overly litigious.
  • If there is a record of recent, prior warnings (verbal or written), mention them.  
  • Follow through with the steps outlined in the warning, if applicable. For example, if the warning states that an employee will be terminated the next time he or she engages in a particular form of misconduct, the employer should follow through with that action, unless extraordinary circumstances dictate otherwise. Send the message that follow-through is expected throughout the organization from top to bottom.
  • Give the employee the opportunity to provide a written response. If the employee does submit a response, it should be reviewed to see if any follow-up is needed. For example, if the comments indicate that the performance issue is due to the employee’s medical condition or a situation covered by family and medical leave laws.
  • Ensure consistency. Employers should provide the same discipline for employees engaging in the same or similar conduct.

While there is not one right way to write these documents, each should be done with care since it can eventually be used for or against you during a legal challenge. It’s great that you’re trying to ensure you manage this better in order to protect yourself.

Did You Know?

Tennessee Employers Have An Option to Allow Limited Carrying of Concealed Firearms at Work?

For employers in TN there are now two options for managing firearms at work, depending on the position you take on the matter.

First, firearms can be prohibited. Tennessee has adopted very specific requirements for how employers and other property owners must notify employees and visitors when they seek to prohibit firearms on their properties. Notices of such a prohibition must be posted in prominent locations, including at all entrances primarily used by persons entering buildings where weapon possession is prohibited. When an employer’s property has been properly “posted,” possession of a firearm is a crime.

Second, firearms can be allowed. Employers may now allow individuals authorized to carry handguns under Tennessee law (i.e., those with concealed carry permits) to carry handguns in a concealed manner on employer premises. An employer choosing to allow such concealed carry is still authorized to prohibit anyone else from having a firearm on the employer’s premises. If an employer chooses to allow concealed carry permit holders to carry handguns, the notice requirements are slightly different.

Notice requirements are very specific (font size, pictures, etc.) in either case. To read the full text of the law, click here.

A California Court Clarified Company Vehicle Use and Commute Compensation?

In Hernandez v. Pacific Bell Telephone Company, the California Court of Appeal, Third Appellate District, held that an employer’s provision of a company vehicle to employees to use in traveling from their homes to their first customer appointments of the day and home from the last appointments of the day did not transform commute time into “hours worked.” This decision should come as welcome news to California employers that provide company vehicles for voluntary use.  

The court analyzed the two-part definition of “hours worked” contained in the Industrial Wage Commission’s wage orders: “the time during which an employee is subject to the control of an employer,” and “all the time the employee is suffered or permitted to work, whether or not required to do so.”

With respect to the “control test” (the time during which the employee is subject to the employer’s control and thus working), the court analyzed several California state and federal cases finding that an employer’s provision of transportation to the worksite did not transform the commute time into hours worked so long as the use of the transportation was optional.

As for the “suffer or permit” test, the court did not agree that the transportation of equipment (which had been loaded the previous night) to the customer’s house from the employee’s home constituted work under the “suffer or permit” standard.

Massachusetts and New Jersey Enacted Changes Regarding Health Insurance?

In Massachusetts, new legislation temporarily increases the existing Employer Medical Assistance Contribution (“EMAC”) and imposes an additional EMAC supplement on employers whose employees receive Medicaid or subsidized coverage through Massachusetts’ ConnectorCare program.  The legislation took effect on January 1, 2018 and is set to continue through December 31, 2019.

In New Jersey, the state legislature established an individual health care mandate that requires New Jersey residents to obtain health coverage or pay a penalty. In doing so, New Jersey became the first state in the country to respond to the effective repeal of the ACA’s individual mandate by enacting its own individual mandate. The New Jersey law took effect on January 1, 2019 and entails reporting requirements that will generally track the federal ACA reporting requirements.

WHAT’S NEW in Employment Compliance


Kentucky Bans Mandatory Arbitration As A Condition of Employment

A recent decision by the Kentucky Supreme Court makes mandatory arbitration agreements that require applicants or employees to sign if they want to be hired or remain employed illegal. This marks the first time a state has done this in the nation. The ruling came down in Northern Kentucky Area Development Dist. v. Snyderwill and will likely send shockwaves through the state and cause many employers to immediately change a very common business practice.

Going forward, Kentucky employers with arbitration agreements should carefully discuss the ramifications of this decision with their attorney and take the necessary steps to ensure compliance. While it’s possible this decision will be challenged with a higher court, it’s the law for now and failing to follow it may be grounds for liability.


Breastfeeding Breaks Law Get An Update in California

As of January 1, 2019, the following amendments are in effect:

  • Employers are prohibited from providing bathrooms as a location for women to express milk in private;
  • Conditions are in place regarding acceptable temporary lactation locations; and
  • Special exemption exists for agricultural employers.

A temporary lactation location will comply with state requirements if the following conditions are met:

  • The employer is unable to provide a permanent lactation location because of operational, financial or space limitations;
  • The space is private and free from intrusion while a woman expresses milk;
  • The space is used only for lactation purposes while a woman expresses milk; and
  • The space otherwise meets the requirements of state law concerning lactation accommodation.


“HIRD”: A New Form and Reporting Requirement in Massachusetts

The new requirement is for employers with six or more employees, and it took effect November 2018. The form, called the Health Insurance Responsibility Disclosure (“HIRD”), must be filed annually by November 30. The intention of the form is to collect employer-level information about the particular health insurance that each employer offers to its employees. The Commonwealth seeks this information in order to help it identify individuals who have access to employer-provided health insurance and who may be eligible for MassHealth’s Premium Assistance Program.

The form should be completed through the MassTaxConnect web portal. As this is the first year for the requirement, there will be no penalty if employers failed to file by November 30, 2018.

To review the FAQs issued by the Commonwealth click here.


IRS Raises Standard Mileage Rates for 2019

The IRS announced in December that the standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes were increasing. The rate for the use of cars (also vans, pickups or panel trucks) will be:

  • 58 cents per mile driven for business use, up from 54.5 cents in 2018.
  • 20 cents per mile driven for medical or moving purposes, up from 18 cents.
  • 14 cents per mile driven in service of charitable organizations, which is unchanged from 2018.

Former University Registrar Awarded $310,500 In Retaliation Suit

In a recent case, DeBose v. USF Board of Trustees, et al, No. 8:15-cv-02787 (M.D. Fla. Sept. 26, 2018), a jury returned a $310,500 verdict in favor of a former University of South Florida employee on her retaliation claim against the University. The former employee, Angela DeBose, claimed she was retaliated against because she had filed internal race bias complaints with the University and a U.S. Equal Employment Opportunity Commission charge of discrimination.

A little on the case…DeBose filed an internal ethics complaint against another administrator, charges of discrimination internally with the University, and eventually a charge of discrimination with the EEOC in December 2014. DeBose was given a notice of separation/termination and told to immediately leave campus on May 19. She was eventually terminated effective August 19, 2015.

At trial, the jury found the University had retaliated against DeBose; they did not find that she was discriminated upon because of her race. The jury found a preponderance of the evidence showing that her race was a factor in the decision to end her employment, but it also found that she would have been discharged regardless of her race. 

In conclusion, this case is another example of how a retaliation claim can prevail even in the absence of a finding of discrimination. Employers should respond to all complaints involving possible discrimination with thorough and objective investigations. Further, any employment actions taken against an employee after they have filed a complaint — either internally or externally — should be related solely to their job and meticulously documented.

Pennsylvania Jury Awards Scientist $3M in Gender Discrimination Suit

In the case, Carol Knox worked for PPG for 23 years and was a Project Manager in the research and development group, where she was the only female at the time of her termination in 2013. Knox brought suit in 2015 alleging gender and age discrimination.

Knox alleged that her supervisor had fired her because he did not want to work with a woman. Knox asserted that her supervisor falsely accused her and conducted a sham investigation as an excuse to terminate her. She alleged that her supervisor for the last three years with the company, who was a decision-maker in her termination, directed sexist remarks at her, demonstrating a bias against women, and treated her differently than her male counterparts by assigning her to administrative teams rather than technical teams. Knox further claimed that she reported her concerns regarding some of this behavior to PPG’s Human Resources department. Finally, Knox asserted that shortly prior to her termination, her supervisor attempted to drive her out of his group by encouraging her to take a different position within PPG, and then became “irate” and “menacing” when she decided not to transfer.

While the company argued that it had a legitimate basis for firing Knox, after a four-day trial in the U.S. District Court in Pittsburgh, the jury ruled in favor of Knox on her gender discrimination claims, awarding her $993,495 in front pay, $478,585 in back pay, and $1.5 million in emotional distress damages.

This case is an example of the way jury trials may play out in the era of the #MeToo movement. Plaintiffs now have more support than ever to bring their claims. Employers should make sure to respond to all complaints with a thorough and objective investigation, and all subsequent employment actions or investigations involving the complainant should be strictly job-related and well-documented.

Workers Are Quitting Their Jobs At Higher Rates Each Year

In 2000, the Bureau of Labor Statistics (BLS) began recording what’s known as the quits rate. According to their tracking, the number of employee quits has increased for nine consecutive years, and now more U.S. workers are quitting their jobs than at any time since the numbers have been recorded.

The BLS reported that 3.5 million people—or 2.3 percent of the total workforce—left their jobs voluntarily in October 2018, the most recent month for which data exists. Private-sector workers quit at a rate of 2.6 percent in October, up from 2.4 percent the previous year.

The challenge for employers is to determine why this may be happening to them (money, promotional opportunities, culture, etc.) and consider implementing appropriate changes to help reduce voluntary turnover if it’s become a problem.