Here are five considerations that should be on the top of every employer’s mind in California when interviewing applicants for an open position.

1. Does the applicant’s actions back-up their interview?

Don’t come to an interview saying that you have a passion for business development and marketing, but when I review your LinkedIn page you have five connections and have never written any articles on your subject matter.  You don’t have to have 1,000 connections either, but employees saying they are interested in marketing need to back this up with some actions.  And no, your 1,000 followers on your Instagram account that only has pictures of where you eat and vacation does not count either.

2. Will the applicant commit the “unforgivable sin”?

Gary Vaynerchuk explains that being able to put in long hours is not a skill that he looks for in every employee.  The “unforgivable sin” for Vaynerchuk is if employees cannot get along with co-workers, are disrespectful, selfish, or create conflict.  How can an employer find out if an applicant is not a team player?  Seeing how the applicant treats the receptionist upon arriving for the interview and how they treat the waiter at the lunch meeting can be key indicators.  Calling references provided by the applicant can lead to good information.  Also, asking around with colleagues and your network about people can surprisingly lead to great information about applicants.  For example, it amazes me how many attorneys know of other attorneys in Los Angeles and how important one’s reputation is even in a large legal community like Los Angeles.

3. Does the employer follow-up with references provided by applicant?

It is a good practice to follow-up with the applicant’s references provided.  I’m also a big proponent of conducting a search of the applicant’s background on the Internet.  For some issues that may arise when an employer uses the Internet to do a search on an applicant, my previous article on the topic can be read here.

4. Does the employer understand obligations when conducting non-criminal background checks?

When conducting background checks on applicants and employees, employers need to take time to review the applicable state and federal laws that apply to background checks.  LinkedIn was sued previously for violation of the federal Fair Credit Reporting Act (FCRA) for certain background reports it generated for users of the site.  In addition, under California law, the Investigative Consumer Reporting Agencies Act and the Consumer Credit Reporting Agencies Act could apply to background checks in the employment context.  These laws are very complex, and employers should enter this area with the knowledge of their obligations before conducting background checks.  For more information about background checks, please see my previous article here.

5. Does the employer understand state and local criminal history background check prohibitions?

Effective January 1, 2018 California employers cannot ask an applicant for employment to disclose information about criminal convictions.  The new law (added as Section 12952 to the Government Code) applies to employers with 5 or more employees.  Once an offer of employment has been made, employers can conduct criminal history background checks, but only when the conviction history has a “direct and adverse relationship with the specific duties of the job,” and requires certain disclosures to the applicant if employment is denied based on the background check.  In addition, local governments, such as Los Angeles and San Francisco have implemented their own prohibitions on criminal history checks, and employers must also comply with these local requirements.  Don’t forget about California’s prohibition on inquiring about applicant’s prior salary history as well.

The hiring process cannot be underestimate, both from a managerial and legal perspective.  This Friday’s Five focuses on critical management and legal considerations for employers during the hiring process:

1. Ignore the applicant’s resume during the interview.

Nolan Bushnell, the inventor of Atari and Chuck E. Cheese, and the first person to hire Steve Jobs, provides some great examples of how to conduct an interview to determine if the applicant is a good fit for the company in his book, Finding the Next Steve Jobs.  He recommends asking applicants about their top ten favorite books, listening to how they describe their life (“the passionless tend to be blamers”), and asking questions that have no right answers. This allows the interviewer to understand how the applicant analyzes a problem.  The book is a must read for leaders in companies that require creative thought leaders working in their establishment.

2. Leaders need to be involved in the hiring process.

This is simply something too important for a company to leave to other people.  Sam Altman, of Y Combinator, wrote:

The vast majority of founders don’t spend nearly enough time hiring. After you figure out your vision and get product-market fit, you should probably be spending between a third and a half of your time hiring. It sounds crazy, and there will always be a ton of other work, but it’s the highest-leverage thing you can do, and great companies always, always have great people. You can’t outsource this—you need to be spending time identifying people, getting potential candidates to want to work at your company, and meeting every person that comes to interview. Keith Rabois believes the CEO/founders should interview every candidate until the company is at least 500 employees.

Founders interviewing employee number 1 to 500 sets to tone for the company in many ways in addition to the value mentioned by Sam. First, meeting all new hires illustrates that the employees are valued. Second, it shows that the founders are approachable and should the employee have any complaints they could discuss the issues with the founders. Granted once the company passes the 50 employee mark, it becomes more difficult to have a personal relationship with everyone in the company, but at least the founders are meeting everyone working at the company. This proves to the employees that they are valued. Usually the company’s open door policy states that if the employee has any complaints, they are free to discuss it with their supervisor, and if appropriate their concerns can be escalated to the founders/CEO. Meeting with employee during the hiring process can give teeth to the open door policy, and promote the practice of speaking with the founders if any employees have concerns about work.

3. Try working with the applicant first.

I don’t care how many interviews someone has conducted, no one can determine if an applicant will be a good fit in a company over an interview at lunch. No matter how good you believe your interview questions are at finding out the applicant’s true values, work ethic, and knowledge base, anyone with an internet can study-up on how to handle almost any type of interview scenario and look amazing during the interview. How does a company get past this problem? Sam Altman again has some great advice and recommends hiring the applicant as an independent contractor and giving her a day or two of work on a noncritical project. I recommend that companies may take it one step further, and depending on the circumstances, it may even be appropriate to hire the applicant as an employee with the idea that they are to only work on one short project during the nights or weekends. There is nothing in the law that prevents a company from hiring employees for a day or two to see how they would work, that is the idea behind at-will employment.

4. Find the applicant’s true ambition.

 Gary Vaynerchuk has a great take on what interviewers should be striving to determine during the interview:

 When I interview you, the main thing I want to know is where you want your career to go. “What do you want to be when you grow up?” I want to get into the psychology of what their ambition is. And I spend most of the interview trying to get that person comfortable enough to tell me the truth to that question. Because I don’t care if you want to be the CEO of VaynerMedia, or if you just want to move a couple levels up and have great work life balance. I don’t even care if you want to come work for me for two years, suck up all my IP, and then go somewhere to start your own agency. I really don’t care. Truly. Whatever your agenda is, I’m fine with it. I just want to know what it is, so I can help us get there. You and me.

5. Make a checklist of legal hiring compliance issues.

As always, it is good to periodically review hiring materials, questions and processes to insure compliance with local, city, and state laws, such as:

  • Are applications seeking appropriate information?
  • Are new hires provided with required policies and notices?
  • Are new hires provided and acknowledge recommended policies?
    • For example: meal period waivers for shifts less than six hours
  • Are hiring managers trained about the correct questions to ask during the interview?
  • Does the company provide new hires (and existing employees) with arbitration agreements?

1. CEOs and founders need to be involved in the hiring process. This is simply something too important for a company to leave to other people.  Sam Altman, of Y Combinator, wrote:

The vast majority of founders don’t spend nearly enough time hiring. After you figure out your vision and get product-market fit, you should probably be spending between a third and a half of your time hiring. It sounds crazy, and there will always be a ton of other work, but it’s the highest-leverage thing you can do, and great companies always, always have great people. You can’t outsource this—you need to be spending time identifying people, getting potential candidates to want to work at your company, and meeting every person that comes to interview. Keith Rabois believes the CEO/founders should interview every candidate until the company is at least 500 employees.

Founders interviewing employee number 1 to 500 sets to tone for the company in many ways in addition to the value mentioned by Sam. First, meeting all new hires illustrates that the employees are valued. Second, it shows that the founders are approachable and should the employee have any complaints they could discuss the issues with the founders. Granted once the company passes the 50 employee mark, it becomes more difficult to have a personal relationship with everyone in the company, but at least the founders are meeting everyone working at the company. This proves to the employees that they are valued. Usually the company’s open door policy states that if the employee has any complaints, they are free to discuss it with their supervisor, and if appropriate their concerns can be escalated to the founders/CEO. Meeting with employee during the hiring process can give teeth to the open door policy, and promote the practice of speaking with the founders if any employees have concerns about work.

2. Try working with the applicant first. I don’t care how many interviews someone has conducted, no one can determine if an applicant will be a good fit in a company over an interview at lunch. No matter how good you believe your interview questions are at finding out the applicant’s true values, work ethic, and knowledge base, anyone with an internet can study-up on how to handle almost any type of interview scenario and look amazing during the interview. How does a company get past this problem? Sam Altman again has some great advice and recommends hiring the applicant as an independent contractor and giving her a day or two of work on a noncritical project. I recommend that companies may take it one step further, and depending on the circumstances, it may even be appropriate to hire the applicant as an employee with the idea that they are to only work on one short project during the nights or weekends. There is nothing in the law that prevents a company from hiring employees for a day or two to see how they would work, that is the idea behind at-will employment.

3. Don’t assume all workers are the same in under the law. Not everyone hired can be classified as independent contractors or exempt employees.  These legal terms have very specific tests that must be met, and failure to properly classify workers could expose the company to large penalties. If everyone in a company is classified as an independent contractor or an exempt employee, more likely than not, there is a problem that needs to be addressed, and the company needs to evaluate its HR function more carefully.

4. Develop an employee handbook. All new hires should be given a handbook that sets out the company’s practices and procedures. Handbooks are not legally required in California, but there are required policies that companies must have depending on their size. A handbook is the perfect way to communicate the required policies to all new hires in a consistent and documented manner.

5. Have a new hire packet. The legal documents required to be provided to a new employee is becoming very detailed. Companies should standardize a new hire packet that meets all legal requirements.

Who was the first person to recognize Steve Jobs’ potential and offer him a job? It was Nolan Bushnell. By the way, Bushnell is also the founder of Atari, co-inventor of the video game Pong, founder of Chuck E. Cheese, and is a serial entrepreneur. Given Bushnell’s track record in business, and having the badge of honor of the first person to hire Steve Jobs is more than enough evidence that managers, CEO’s, and human resources personnel should listen to his thoughts on hiring.

Bushnell’s recently published book, Finding the Next Steve Jobs, sets forth what he refers to as “pongs”, or general flexible rules managers should abide by in order to find, hire, and retain the best and most creative employees. I starting reading the book after I was fortunate enough to meet Nolan at Paul Allen’s Living Computer Museum opening in April [see picture – from left to right: Chris Espinosa (Apple’s 8th employee), Nolan Bushnell, Bob Frankston (co-creator of VisiCalc), Robert Zaller (co-founder of MITS and co-inventor of the Altair), me, and Eric Zaller]. Bushnell makes some excellent points in regards to finding and hiring the best and most creative employees and provides some examples on how to interview applicants to see their true personalities. The following are a few points Bushnell discusses in the book, and a very good reminder to anyone involved in the hiring process.

Creative employees are arrogant.
Only the arrogant have the strength to push for their ideas. They will continue to push their ideas far past the point any other individual would have relinquished to the pressure to give in or to conform to the “norm.” Arrogance does have its place, it is the vehicle creatives use when their solutions do not match anyone else’s views, which must be the case by definition of being creative. I’ve written before that arrogance can buy a company a lot of lawsuits, especially if a manager or the CEO is arrogant. An arrogant employee cannot create the same level of liability for a company, but they still must proactively be handled and discussed with other the other members of the team. On the other hand, managers and a CEO must be able to manage their arrogance in order to avoid looking like a bully, buying the company a lot of litigation.

Hire creative people and find a position for them. Don’t hire for a position.
Bushnell advocates the idea that a company can find great employees through everyday interactions with people. The truly creative and passionate people will standout, it does not matter what job they are doing, their skills will carry over to their work in any job.

Ignore the applicant’s resume during the interview.
Bushnell also provides some great examples of how to conduct an interview to determine if the applicant is a good fit for the company. He recommends asking applicants about their top ten favorite books, listening to how they describe their life (“The passionless tend to be blamers.”), and asking applicants questions that have no right answers. This allows the interviewer to see how the applicant analyzes a problem.

Finding the Next Steve Jobs is a great resource for anyone in the human resources profession, and for anyone who has the responsibility of finding great employees for their company.

The recent (and not too recent) flurry of attention that has been given to the issue regarding whether employers can ask applicants and employees for their Facebook passwords is a good review of what is appropriate conduct for employers, but it is also a good reminder to employees that what they do online is of critical importance to their employment. Asking employees for passwords to social media account may cross the line. But how about Googling an applicant’s or employee’s name to find out more about them? This is not even an issue – or should not be one – given that this information is open to the public. I’ve even argued in the past that it could be negligent for an employer not to do this basic background internet check.

The Internet affords employers the ability to see beyond a resume to make better informed hiring decisions. If fact, Dorie Clark of the HBR Blog Network makes the point that everyone’s online presence is critically important to their professional careers. Dorie notes:

Sure, they probably have a Facebook account, and they may even be on Twitter. But they don’t recognize that these are no longer personal communication tools, or a means of strengthening weak ties across their networks. Instead, they are the criteria by which you will be evaluated in the future. Just as Michael Deaver ensured that Ronald Reagan always stood in front of a perfect, picturesque backdrop — and set the standard for all subsequent leaders — you’re now responsible for curating your image.

Dorie makes the observations that with the Internet: (1) your reputation always precedes you, (2) if you’re invisible online, you’re probably a fraud, (3) you progress or you stagnate (i.e., you create a valuable source of content through your twitter feed, blogging, etc…).

My interview with Guy Kawasaki last year discussed many of the same points. Guy noted that if you don’t have a Facebook page, or any other online presence, it will raise some questions about you. Are you not technical enough to get onto social media platforms? Are you hiding something?

I am sure HR managers have their share of funny interviewing tales – but I recently came across the How To Nail An Interview website (via Seth Godin).  The author of the site staged a fake company to see what type of applicants he would have for an open "marketing coordinator" position.  He recorded the interviews (yes – the first idea I had was if this was legal, but the author says he disclosed the fact that the participants might be recorded).  The outcome is hilarious.  

Readers should visit How To Nail An Interview, but here are a couple of my favorite interviews from the site.

Too much information on a Facebook profile :

https://youtube.com/watch?v=SjJjQ2sXfuQ%26hl%3Den%26fs%3D1

Employee who does not want responsibility:

https://youtube.com/watch?v=WJisIHXvmRs%26hl%3Den%26fs%3D1