PGCC Police Officer Recruitment and Selection Process Essay

Description

prepare a sequential employee recruitment and selection process that focuses on best practices. Information included from inside or outside the class is acceptable; however, utilize proper citations to credit work from outside sources.  
 This is an opportunity to “think outside the box.”   Try to create a process that you believe can best serve your department and your community.
Use the following topic areas as the framework for your submittal:

Posting for Recruiting/ Advertising
Application Matters
Written and Oral Testing/Boards/Interviews
Backgrounds
General/Overall Selection Elements
Medical/Psychological
Probationary Issues

In your document, consider the following issues and describe briefly how you would handle situations to which they apply:  

Equal Employment Opportunity Commission (EEOC)
Americans With Disabilities Act (ADA)
1978 Uniform Selection Guidelines (USG)
Age Discrimination in Employment Act (ADEA)Pre-Employment
Background
Investigations
By
Richard Hodsdon
Attorney at Law
Box 825
Stillwater, MN 55082
651-341-8202 voice
rhodsdon@mnsheriffs.org
2013
PRE-EMPLOYMENT BACKGROUND INVESTIGATION LEGAL
ISSUES
With a growing body of cases holding employers liable for negligence in the hiring and
supervision of personnel every employer should carefully navigate between the risks of such a
suit on one side and the risk of a civil rights or human rights complaint on the other side for
violation of antidiscrimination laws in the hiring process. This chapter is intended to help the
hiring authority travel through this risky passage. By now every employer should recognize the
need and obligation to conduct appropriate and thorough background checks before hiring a new
employee. The nature and scope of a background check will vary depending on the nature, duties
and responsibilities of the position. Properly used and conducted background checks and
investigations can provide employers with a tremendous amount of useful information about a
prospective employee and fitness for employment in a particular position or agency. Background
investigation tools and hiring processes and procedures used incorrectly can result in costly and
time-consuming litigation and liability for claims of discrimination under the federal law. The
scope of a background investigation is typically dictated by the nature of the position and what
duty the employer owes to its own employees and the public to hire appropriately qualified and
fit employees.
Employers may protect themselves from negligent hiring or retention claims by conducting
background investigations that are reasonable and appropriate for the position and the
circumstances.
Like nearly every other jurisdiction in the United States, Minnesota has recognized an employer
may be liable to an injured third party on a basis of negligent hiring, retention or supervision.
See, Udofot v. Seveneights Liquor, 2010 WL 5071313 (Minn. App. 2010); Johnson v. Peterson,
734 N.W.2d 275 (Minn. App. 2007); Yunker v. Honeywell, Inc., 496 N.W.2d 419 (Minn. App.
1993); Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983); D.D.N. v. FACE Festivals
and Concert Events Inc., 2010 WL 1190137 (Minn. App. 2010); Travelers Indemnity Company
v. Bloomington Steel and Supply Company, 2008 WL 467427 (Minn. App. 2008); Hinez v.
Aandahl Construction Company, LLC, 2006 WL 2598031 (Minn. App. 2006). In such cases to
establish liability a Plaintiff must prove that the defendant employer knew or with reasonable
diligent investigation should have known of the propensities of the employee, the reasonably
foreseeable risk that hiring the person and putting them in the position that they did would be
likely to result in harm to a third party and that the harm in fact ensued. While a review of many
of these cases reveals that they may rise or fall on the issue of reasonable foresee ability clear
trend of case law both in Minnesota and across the United States is to find that particularly in
regard to prior criminal behavior that there is a duty of care to conduct some reasonable
investigation into the behavior and activities of an applicant for employment before placing the
person in a position in which it is reasonably foreseeable that they could cause harm to another
as evidenced by prior misconduct or criminal behavior.
Employers must carefully select prehiring screening tools that are job related and use them
consistently in a nondiscriminatory manner. Information that is not relevant to the hiring decision
should not be collected or used but the reality is that the more complete the background
investigation the more likely it is that the investigator will acquire protected class information
that creates exposure to risk of a discrimination claim. As discussed below to reduce that liability
risk the background investigator should not be the ultimate decision maker in the hiring process.
Employers may face administrative charges of discrimination or civil litigation if they obtain
information improperly and then use that information as the basis to reject a job applicant. In
some instances improperly obtained information, even if not used against the applicant during
the hiring stage, can be used against the employer at a later date and even by another candidate
as part of a claim of discrimination or by the Minnesota Department of Human Rights
investigation into alleged discrimination. This chapter is designed to provide employers with
information about some of the most common background investigation tools and screening
devices. While we will be discussing relevant legal issues, statutes and case law, this chapter
departs from a purely legalistic format and is intended to also provide some practical suggestions
on the subject of hearing and background investigations.
THE PURPOSE OF BACKGROUND INVESTIGATIONS
Background investigations and job related hiring tools satisfy two important objectives. They
help limit exposure to litigation and they assist employers in finding qualified employees.
Common law and statutory sources of liability related to hiring decisions include negligent hiring
and retention, workers’ compensation, occupational health and safety laws, intentional infliction
of emotional distress and violations of state and federal discrimination laws. In many cases an
employer can limit its exposure to such claims by conducting a thorough and job related
background check. A simple check may reveal significant problems about an employee’s
background such as a propensity for violence, theft, or dishonesty. Having this information
facilitates an informed decision about the applicant’s fitness for the position before being hired.
By carefully selecting screening tools an employer can maximize its investment of resources in
hiring. Employers can be better assured that they are hiring individuals who meet their needs and
who will meet performance expectations. In the long run these efforts contribute to the creation
of a better qualified and more stable workforce and better use of tax dollars.
SOME GENERAL RULES
1. Administer the Same Tests to All Applicants: All applicants for the same position should be
tested in the same manner. Using certain screening tools for some applicants but not others
could result in a claim of discrimination.
2. Different Tools May Be Used for Different Positions: As a general rule employers are not
required to use the same tools for all positions. An employer may have a legitimate reason
for conducting a more thorough background investigation on an applicant who may have
access to money or non-public data or work with children compared to a position that does
not.
3. Medical Examinations: Due to requirements of the Americans with Disabilities Act (ADA)
and the Minnesota Human Rights Act (MHRA) medical and psychological examinations
should not be given before a conditional offer of employment has been made to an applicant.
After extending such an offer the test may be given but must be limited to testing for ability
to perform essential job functions.
4. Nonmedical Examinations: Nonmedical examinations may be administered before a
conditional offer has been made. These tools should not be used in a discriminatory manner
5.
6.
and they should be job-validated, which means they accurately test for work-related
essential job functions, skills or abilities.
Check All References: Contact the references identified by the applicant. Although the
information that you may obtain is frequently limited, you may discover that the applicant
has lied on his or her application about such things as experience and disciplinary history.
Don’t Solicit Unnecessary Information: Whether conducting an interview of the applicant,
checking references, or obtaining information through any other party, employers should not
solicit information they are not entitled to get directly from the applicant. Employers should
not seek information about disabilities, past claims against employers, marital status, sexual
orientation or other protected class status. Employers with knowledge regarding such criteria
may be accused of using that knowledge to deny an applicant a job even if the employer
acted for legitimate reasons.
THE EMPLOYMENT APPLICATION
The first place a public sector employer starts is usually with an employment application.
Applications can be a potential litigation landmine for employers. The key to limiting an
employer’s exposure is to review the application carefully and remove all questions that are
improper on their face or that are likely to reveal data about the applicant that is not necessary to
have during this stage of the hiring phase such as a social security number. The purpose of an
employment application should be to obtain basic data that is sufficient to allow the employer to
confirm that the applicant is who he or she claims to be and that the applicant meets the
minimum qualifications of the position. Public employers should include a data practices rights
advisory notice to the extent they ask the applicant for non-public data such as home address or
telephone number. Other investigative tools such as the interview can be used later to gather
additional data about the applicant. Some examples of permissible inquiries during the hiring
process include:









Full name;
Current address and email address;
Past addresses if a criminal background check is to be performed;
Educational information: schools attended, degrees or courses, whether degree or
license was obtained;
previous employment: names, addresses, telephone numbers, supervisors names, job
titles, dates of employment, salary, and reasons for leaving;
Job-related criminal convictions: date, place and nature of the offense, and a statement
that applicant will not be automatically disqualified based on this answer, depending on
the position;
Whether the applicant is currently using illegal drugs or has done so in the recent past;
Personal references that are neither family or past employers; and
Professional licenses or certifications obtained and the name of the entity. Issuing the
license, the address and dates of issuance.
To protect the employer and ensure that additional investigation tools can be used if necessary
later in the hiring process the employer should also include on a separate document that is not
used or seen by the person making the hiring decision:

an additional Data Practices Rights Advisory and data practices consent form for an
investigation of employment, educational, personal, and licensing information about the
applicant;
• A separate disclosure statement and consent to perform a criminal background check (a
sample is included at the end of this chapter),
• And a verification paragraph and signature line for the applicant.
The hiring decision maker should not seek data relating to protected class status. Questions about
the applicant’s age, sex, marital status, national origin, race or any disability are improper and
could lead to liability under state and federal discrimination laws. To the extent the employer
needs this information for bona fide work-related purposes it can be obtained either after an offer
of employment has been made and accepted or by a separate background investigation process
using a packet similar to one included at the end of this chapter. The general guidelines discussed
below with respect to interview questions should also be followed with respect to the applicants.
If a question should not be asked in an interview it also should not appear on an employment
application.
EMPLOYMENT INTERVIEWS AND PROHIBITED QUESTIONS
One of the most common preemployment investigative tools is the employment interview. It can
also be a common way for an unwary employer to walk into a lawsuit. An applicant who has
been or believes that he or she had been wrongfully denied a job because of race, age, sex, sexual
orientation, disability or other protected class factors may bring a lawsuit to challenge the
employer’s selection process. Improper questions can provide an applicant with the evidence
necessary to establish an inference that such information was used illegally during the hiring
process.
One of the first considerations that employers should make is to ensure that the interview site is
accessible to the disabled and that proper accommodations are extended to those applicants who
make reasonable accommodation requests. Failure to provide a reasonable accommodation to a
disabled applicant during the hiring process can constitute a violation of the ADA or the MHRA.
Another important consideration is what questions will be asked during the interview. During
this stage employers should restrict their questions to objective inquiries regarding an applicant’s
skills and work history that are relevant to the position sought and that will assist in making a
comparison between applicants.1 In most instances, especially where numerous people will be
interviewing applicants, it is advisable to develop a list of predetermined questions to be asked of
every applicant. This technique ensures that interviewers are more likely to ask only permissible
questions.
The interviewer may keep notes of the questions asked and the applicant’s responses and some
employers even record the interviews. These notes or recordings are likely classified as
personnel data about the candidate under Minn. Stat. § 13.43 they will be subject to access by the
applicant. For that reason the notes should not contain any reference to race, age, sex, disability,
sexual orientation, marital status, etc., and should not contain the subjective comments of the
interviewer. Any recording should only record the actual interview and not extraneous
comments. Federal law requires employers who are federal contractors or subcontractors subject
to OFCCP regulations to maintain notes that are taken during preoffer interviews.2
A difficult part of this process can be selecting permissible questions. While federal
discrimination statutes with the exception of the ADA do not prohibit questions about
membership in a protected class, the MHRA expressly prohibits an employer from soliciting
information about a protected class category during the prehire stage unless it relates to a subject
that is a bona fide occupational qualification (BFOQ).3
The following chart details some of the most commonly asked improper questions and
offers some suggestions.
Permissible and Impermissible Questions
Category
You May Ask
Address/Residence “Can you be reached at this address? If
not, would you like to leave an alternate
address?”
You Should Not Ask
“Do you own your home or
rent?”
“Do you live with your
spouse?”
“Can you be reached at these telephone
numbers? If not, would you like to leave
an alternative number?”
“With whom do you live?”
Age/Health Status Only questions that verify applicant is legally Any questions that imply a
old enough to comply with state
preference for persons of a
and federal child labor laws.
certain age or age group.
“With or without reasonable
Date of high school graduation
accommodation are you able to perform the
essential functions of this job?”
Birth date
Citizenship
“Are you legally eligible to work in the
United States?”
Questions about whether an
applicant or current employee
has any chronic medical
condition or disease.
“Are you a United States
citizen?”
Any questions concerning race
or color of skin, eyes, hair,
accent,
etc.
Where were you born?
Disability
Drug Use
Education
“With or without reasonable
An employer MAY NOT make
accommodation are you currently able to
any medical inquiry or conduct
perform the essential functions of the job(s) any medical examination prior
for which you are applying?”
to
making a conditional offer of
The amount of sick time or medical leave
employment.
taken at last job is permissible, but
not the reasons for taking medical leave.
Questions about an applicant’s
medical or mental condition or
or disabilities.
Current use of illegal drugs.
Questions about past
addictions.
Recent use of illegal drugs.
Use of lawful drugs.
“What subjects did you excel at school?”
Frequency of alcohol use.
“Who paid for your
educational or living expenses
while you
were in school?”
“Did you participate in extracurricular
activities and which ones?”
“Did you go to school on a
scholarship?”
“What was your college major?”
“Do you still owe on student
loans?”
“Are you presently enrolled or do you
intend to enroll in school?”
“Did you work an outside job while
attending school? Doing what? What did
you like and dislike about your part-time
job during school?”
“Are you interested in continuing your
formal education? Why? When? Where?”
“How did your education prepare you for
the job you are seeking with us?”
General questions Questions about essential job functions and “Does your physical condition
make you less skilled?”
applicant’s abilities.
Nonessential physical
questions
“Do you have any special skills or
(i.e., weight, height, lifting
knowledge that relate to the job?”
ability
if not related to an essential
“Are your skills recent?”
job
“When did you last use a computer (or any function).
“How many children do you
other machine or skill used on the job)?”
have?”
“Who takes care of your
“Do you enjoy being active in community
children while you are
affairs?”
working?”
“What does your spouse think
“Are there any activities that have
provided you with experience, training, or about you working? What does
your spouse do? What is your
skills that you feel would be helpful to a
spouse’s salary?”
position with us?”
“Is it Mrs. Ms. Or Miss?”
“Are you single? Married?
“How will your involvement in (activity)
Divorced? Separated?
affect your work here?”
Engaged?
“Do you have any commitments that would Widowed?”
The identity of the applicant’s
prevent you from working the
regular hours or schedule of the position?” spouse or partner.
“What is your maiden name?”
“Can you work overtime, if needed?”
“Are you now or do you expect to be
engaged in any other business or
employment? What kind of business or
employment is it? How much time does it
require?”
Military Service
“Have you served in the U.S. military?”
“Did your military service and training
provide you with skills you could put to
use in this job?”
“Have you served in the
military services of a foreign
country?”
National Origin
To comply with the Federal
Immigration Reform and Control Act of
1986, you can ask: “Are you prevented
from being employed in the United States
because of your visa or immigration
status?”
“What is your national origin?”
“Where were you born?”
“What is the origin of your
name?”
“What is your mother
tongue?”
“What country do your
ancestors
come from?”
“Do you read, write, or
speak a foreign language
(unless based on job
requirements)?”
Organizations
Photographs
Pregnancy
About any organization memberships,
For a list of all organizations,
excluding any organization of which the
clubs, societies, and lodges
name or character indicates the race, color, the applicant belongs to.
creed, sex, marital status, religion, national
origin, or ancestry of its members.
“Do you enjoy being active in community
affairs?”
For a photograph after hiring or making a
conditional employment offer for
identification purposes.
“As of the job’s start date will you be
able to perform the essential functions of
the job(s) for which you are applying?”
An applicant to submit
photograph before being
interviewed.
“Are you pregnant?”
“When was your most recent
pregnancy terminated?”
“Do you plan to become
pregnant?”
Any questions about medical
history concerning pregnancy,
children and related
conditions.
Former positions “How did you overcome problems you
“Did you file any claims against
faced there?”
your former employer?”
“Which problems frustrated you the most?”
“Of the jobs indicated on your application,
which did you enjoy
the most, and why?”
“What were your reasons for leaving your
last job?”
“Have you ever been discharged from any
position? If so, for what reason?”
“How many sick days did you have at your
old job?”
“Are you available to work on weekends or
alternative shifts (if this is a part of the
job)?”
Religion
“What is your religion?”
“What church do you go to?”
“What religious holidays do
you
observe?”
Sexual Orientation
“Are you gay?”
Under Minn. Stat. Chpt. 364 public employers may ask applicants questions about criminal
convictions that involve behavior that would adversely affect job performance. Law enforcement
and certain state agencies, school districts, businesses and other organizations that have a direct
responsibility for the supervision, care, or treatment of children, mentally ill or disabled persons or
other vulnerable adults may have more latitude to ask questions regarding arrests that may or may
not have resulted in a criminal conviction.4
Both the MHRA and the ADA expressly prohibit pre-employment inquiries about an applicant’s
disability.5 This prohibition extends to inquiries that directly solicit information about a disability
and those questions that are likely to elicit information about a disability. However at the initial
interview stage the employer may ask the applicant whether he or she can perform the essential
functions of the job with or without reasonable accommodation. An effective way to do this is to
provide the applicant with a list of essential job duties and responsibilities in the form of the
written job duties or position description and ask the applicant to state whether he/she can
perform these functions with or without reasonable accommodation. This is a permissible way to
begin a dialogue with an applicant and will provide the information necessary to make an
informed hiring decision. Some other questions that may be asked include:
• Can you meet the office’s attendance, work hour, and overtime requirements?
• Have you had attendance problems at previous employers?
• Do you possess the necessary skills and experience to perform the job functions?
• Do you possess the necessary licenses, training certificates, or other essential qualifications
of the
job?
• Do you currently use illegal drugs?
Regardless of which of the above questions are used an employer should ask the same questions
of all applicants. Selective questioning could be used as evidence of intent to discriminate
against certain applicants. An employer should not ask visibly disabled employees if they can
perform the essential functions of the job if the employer does not ask the question of all
applicants.
It is important to note that not all questions are permissible for all positions. Office workers may
be required to work set hours and thus reporting to work on time is an essential function. For
professional employees who do not work set hours such a requirement may not be an essential
function. Before asking any question an employer should consider whether it is seeking
information about a function that is essential to the specific position.
If an applicant has an apparent disability that impacts the ability to perform the essential
functions of the job or volunteers information about a disability the employer has greater latitude
to discuss the condition but should be careful about what questions are asked. The employer
should not discuss the disability or any potential limitations associated with the disability unless
the disability will impact the applicant’s ability to perform the essential functions of the job. If
appropriate the employer may ask the applicant to describe or demonstrate how the applicant
would perform the essential functions of the job even though the employer would not otherwise
ask all applicants the question. The employer should not inquire further into the nature, extent or
severity of the disability.6 If the applicant indicates that an accommodation would be necessary
the employer may then engage in an interactive discussion with the applicant regarding what
accommodation would be necessary.
When an employer makes an employment decision based on medical information provided by an
applicant or employee it is obligated to provide notice to the applicant or employee of the
information upon which it relies. The MHRA requires an employer to notify an applicant or
employee of any health care records or medical information that adversely affects any hiring,
firing, or promotional decision.7 The employer must provide this information to the employee or
applicant within ten days of the final decision.8
CRIMINAL BACKGROUND CHECKS
Some employers are required by law to conduct criminal background checks before hiring an
applicant. The common law may also impose a duty to conduct criminal background checks
regarding some job applicants depending upon the nature of the position.9 Other employers use
criminal background checks to determine if an applicant has a history of violent or dishonest
behavior. Regardless of the reason for seeking this information the following issues should be
considered when conducting criminal background checks.
Under Minnesota Statute Chpt. 364, the Ex-Offender Rehabilitation Act, public employers may
not use a prior conviction to disqualify an applicant from employment unless the conviction
directly relates to the position sought.10 Public employers that have a blanket policy of denying
employment to applicants with arrest records face a serious risk of litigation. As a general rule
both public and private employers are prohibited from engaging in employment practices that
have a disparate impact on a protected class of individuals. The EEOC and several courts have
recognized that employment policies that automatically exclude applicants with arrest records
may have a disproportionate negative impact on people of color.11 The EEOC also believes that
questions about arrests may discourage minority applicants and should not be asked. This means
that even public positions that are exempt from Minn. Stat. Chpt. 364 must consider
discrimination issues in using criminal history records in the hiring process.
As a general policy conviction records are far more reliable as there has been a determination of
guilt and responsibility for the crime. Before acting on a criminal conviction, an employer should
ensure the use of the criminal record is job related. The employer should consider the nature and
severity of the crime, how it relates to the position in question, the timeliness of the conviction,
the age of the applicant when the offense was committed, and whether the applicant has been
rehabilitated.12 An applicant who has been convicted of embezzlement may be unsuitable for a
position involving receipt of funds. That same applicant may be suitable for a position where he
or she does not have access to money, such as a pool lifeguard.
THE FAIR CREDIT REPORTING ACT AND ITS MINNESOTA COUNTERPART
Employment policies that reject applicants solely on the basis of a poor credit history are likely
to violate both federal and state law. The EEOC has declared that rejection of applicants based
solely on poor credit ratings has a disparate impact on people of color and is unlawful.13 The
EEOC has also noted that such a policy could adversely affect women who do not generally have
a credit history that is separate from their spouse’s. The EEOC has concluded that an employer’s
requirement of a good credit record for applicants has a potentially disproportionate impact on
such groups and that use of this selection criterion has not been shown to be job-related. It is
possible that an employer may able to avoid liability in this regard by showing that a good credit
record is justified by business necessity and based on something specific about the job at issue.
One court held that a bank’s practice of performing credit checks on tellers did not unlawfully
discriminate against minority applicants where the checks were done in a facially neutral manner
and served a legitimate job-related purpose for the employment of bank tellers who handle
cash.14 Unless an employer can demonstrate a business necessity for the decision to search an
applicant’s credit history the employer may be vulnerable to a discrimination claim. Inquiries
about whether an applicant has filed bankruptcy, owns a car or home, has had past garnishment
of wages and other inquiries about an applicant’s financial status may violate federal and state
discrimination laws.
Although the trend seems to be away from the practice many employers, particularly in law
enforcement, obtain credit reports on applicants to determine their fitness for a particular
position. Specific state and federal statutes govern the collection of this information and
notifying the applicant of the process. Failure to abide by the requirements of these statutes can
result in liability. The Fair Credit Reporting Act (FCRA) governs the retrieval and use of
consumer and credit information from consumer reporting agencies by employers. Since 1997
the FCRA has placed reporting and disclosure requirements on employers who seek consumer
reports on job applicants.
The FCRA applies to employers who seek consumer reports or consumer investigative reports in
conjunction with hiring. The Act broadly defines consumer reports as any written, oral, or other
communication of any information by a consumer reporting agency bearing on a consumer’s
credit worthiness, credit standing, credit capacity, character, general reputation, personal
characteristics, or mode of living where such information is used or expected to be used or
collected in whole or in part for the purpose of serving as a factor in establishing eligibility for
employment.15 In the employment setting the two most important elements of this definition are
that the report must be for employment purposes and it must be obtained from and by a
consumer reporting agency. A report is prepared for employment purposes when it is to be used
for the purpose of evaluating an applicant for employment or a current employee for promotion,
reassignment or retention.16 A consumer reporting agency is any person or entity that for
monetary fees, dues or on a cooperative nonprofit basis regularly engages in whole or in part in
the practice of assembling or evaluating consumer credit information or other information on
consumers for the purpose of furnishing reports to third parties.17
Because the FCRA’s coverage is broad many reports aside from traditional credit reports
arguably fall within its scope and the use of such reports obligates employers to comply with
provisions regulating permissible purposes, procedures for ensuring compliance and accuracy of
report information, disclosure requirements and conditions of disclosure. At least one federal
court has held that virtually any information communicated by a consumer reporting agency
would be defined as a “consumer report” under the FCRA.18 Therefore any pre-employment
report prepared by a third-party agency or investigators should be considered as covered by the
FCRA.
Under the FCRA a consumer report may be furnished for background check purposes only in
accordance with a court order, a request of a governmental agency, written consent from the job
applicant to whom it relates or the request of an employer that intends to use the information for
employment purposes.19 If an employer obtains a consumer report that influences in whole or in
part the decision not to hire an individual or to take any type of negative or adverse employment
action involving a current employee, the employer must provide to the applicant a copy of the
actual consumer report that has been relied upon and the summary of consumer rights prescribed
by the Federal Trade Commission.20
Any employer who denies employment or otherwise makes a decision for employment purposes
that adversely affects any current or prospective employee based in whole or in part on
information in a consumer report must provide the employee or prospective employee with
notice of the adverse action, the name, address, and telephone number of the consumer reporting
agency that furnished the report, a statement that the consumer reporting agency did not make
the decision to take the adverse action and is unable to provide the consumer the specific reasons
why the adverse action was taken and a written notice of the employee’s or prospective
employee’s rights to obtain a free copy of the consumer report and to dispute the accuracy of the
report.21
The Act also restricts the use of investigative consumer reports. An investigative consumer
report is a report in which information on an individual’s character, general reputation, personal
characteristics, or mode of living is obtained through personal interviews with neighbors, friends,
associates, or other personal acquaintances.22 Under federal law any reports that fall within this
definition are investigative consumer reports except to the extent that they contain specific
factual information on a consumer’s credit record obtained directly from a creditor of the
consumer or from another consumer reporting agency that obtained the information directly from
such a creditor or from the consumer.23 If an employer procures an investigative consumer report
on an employee or applicant the employer must within three days after the date on which the
report is first requested clearly and accurately disclose to the consumer that an investigative
consumer report including information as to character, general reputation, personal
characteristics, and mode of living, whichever are applicable, may be made.24 The disclosure
must inform the employee or applicant of the right pursuant to 15 U.S.C. § 1681 d (b) to a
“complete and accurate disclosure of the nature and scope of the investigation requested” upon
the employee/applicant’s written request.25 If requested by the employee or applicant this
disclosure must be made in writing, mailed or otherwise delivered to the employee or applicant
within five days of the date the request for the disclosure was received or such investigative
report was first requested, whichever is later. The disclosure should describe the questions asked,
the number and types of people interviewed and the name and address of the investigating
agency.
Federal law also prohibits the reporting of obsolete information as defined by applicable
statutory provisions. Any licensed consumer reporting agency should be well informed and
prepared to answer an employer’s questions concerning these restrictions as well as all
certification, notice and disclosure requirements of both federal and state laws. The FCRA
prohibits the reporting of any adverse item of information that predates the report by more than
seven years. This prohibition does not apply where a consumer credit report is to be used in
connection with the employment of an individual whose annual salary is reasonably expected to
equal $75,000 or more.26 If an employer takes adverse action based at least in part on the
information contained in a consumer report the user must notify the consumer. This notification
may be done in writing, orally, or by electronic means and must include:
l.
2.
3.
4.
the name, address, and telephone number of the consumer reporting agency that
furnished the report to the user, including a toll free telephone number established by
the agency if the agency compiles and maintains files on consumers on a nationwide
basis;
a statement indicating that the consumer reporting agency did not make the decision to
take the adverse action and is unable to provide the consumer with the specific reasons
for the adverse action taken;
a notification of the consumer’s right to obtain a free copy of the report from the
consumer reporting agency used, which must indicate that the consumer has a sixty-day
period in which to obtain the copy; and
a notification of the consumer’s right to dispute directly with the consumer reporting
agency the accuracy or completeness of any information in the report that was furnished
to the user.27
The FCRA imposes civil liability upon users and consumer reporting agencies for willful
noncompliance. The FCRA also provides for recovery of actual damages or fixed penalties for
violations and permits recovery of attorney fees under certain circumstances.28 To reduce
liability risks the employer may wish to follow several procedures.
(1) Do not deny employment based solely on an applicant’s bankruptcy. Federal law
prohibits such discrimination.
(2) Employers may want to obtain additional information about an applicant whose credit
report indicates that a judgment has been filed against the applicant and has never been
satisfied. If an applicant’s credit report reflects several collection items, offer the
applicant an opportunity to explain. Do not question the applicant about personal details
such as a divorce. Focus on information necessary to evaluate the status of the collection
actions. Ensure that anyone performing investigatory or consumer reporting work for you
is properly licensed and has the written permission of the background check subjects or
perform all such checks “in house.”
(3) Require any consumer reporting agency or private investigator participating in your
background check process to confirm both an understanding of and compliance with all
applicable legal requirements, each of which should be clearly identified in a written
contract.
(4) Do not deny employment to an applicant who has a poor credit record if the applicant
appears otherwise suitable for the position on the basis of other job-related criteria.
(5) Consider the length of time since the last incident resulting in a poor credit history or
other adverse item in a consumer report. A lengthy and ongoing history of credit
problems or other undesirable behaviors is likely to be more of a risk to the employer
than old or infrequent problems or incidents.
(6) Before denying employment on the basis of a credit or consumer report provide the
applicant an opportunity to explain the reasons for a poor credit or consumer report.
(7) Be prepared to explain the job-related reasons why the applicant’s consumer or credit
report history renders the applicant unsuitable for a particular position.
Minnesota has enacted the Minnesota Access to Consumer Report Act (ACRA) that is similar to
the federal law in many respects. For the most part compliance with the federal requirements will
also satisfy an employer’s obligations under the ACRA. There are a few additional requirements
for some employers. Employers must notify applicants in writing if the applicant will be the
subject of a consumer report prepared by a consumer reporting agency.29 Minnesota employers
must also include a “box” on the disclosure form that the applicant can check to receive a copy of
the consumer report.30 Minnesota law further provides that if the employer uses an employment
application and the report is requested for applicant screening purposes both the “box” and the
disclosure statement must be included on that application.31
If a consumer credit report reveals that the applicant filed bankruptcy federal law prohibits
employers from discriminating against that employee on the basis of that information. When an
employer obtains a credit report on an applicant and the report contains a record of a bankruptcy
filing the employer should ensure that if the applicant is not selected, it has a well documented
and reason for making its hiring decision. If the decision is not independent from the bankruptcy
information the employer could be held liable for discriminating against the applicant.
PRE-EMPLOYMENT EXAMINATIONS
Another tool used by employers to determine whether an applicant is fit for a particular position
is the pre-employment examination. These examinations can include both medical and
nonmedical tests. Tests cannot be used to screen out applicants on the basis of a protected class
unless they relate to a BFOQ. Before a pre-employment examination is used it should be
validated to ensure that it does not have an adverse impact on a protected class of individuals that
cannot be defended as relating to an essential job function.
Under federal and state law some examinations are absolutely prohibited in the preoffer stage of
the hiring process. Whether an examination is prohibited or allowed and when it can be given
depends on the nature of the examination, the information that may be revealed by the
examination and whether the examination is job related. Employers should remain aware of their
obligations under the MHRA and the ADA to provide reasonable accommodations to applicants
who have a disability. Some possible testing accommodations could include: (1) extending the
time allowed to take the test; (2) providing a reader or interpreter; (3) ensuring that the test site is
accessible; and, (4) administering the test in a different format (e.g., larger type or Braille).
Whether an accommodation is reasonable and whether an employer is required to provide the
accommodation must be assessed on a case-by-case basis and the undue hardship analysis
similar to that used in other employment accommodation cases.
The MHRA provides that employment examinations may test only for essential job-related
capabilities.32 This limitation is narrower than the ADA that does not limit testing but, rather,
limits when adverse action may be taken based on test results. The ADA provides that if an
employer is using disability-related criteria to screen out applicants that criteria must be “jobrelated and consistent with business necessity.33 Minnesota law imposes greater restrictions on
employers with respect to the type of examinations that can be given to applicants.
Both the ADA and MHRA prohibit employers from conducting preoffer medical examinations.34
Medical inquiries are permitted only after a conditional offer of employment has been made to
an applicant. In
Minnesota such an examination may only test for essential job functions. The MHRA
specifically provides that an employer may not request an individual to take a preemployment
medical examination unless the employer has made a conditional offer of employment to the
applicant on the condition that he or she meets the physical or mental requirements of the job, the
examination tests for only the essential functions of the job, all applicants are required to take the
same examination and the information collected is maintained in a separate file.35
A medical examination is defined as any procedure or test that seeks information about an
individual’s health or physical or mental impairments.36 The EEOC suggests that employers
consider the following factors to determine whether a test is “medical”:
• whether the test is administered by a healthcare professional;
• whether the test is interpreted by a healthcare professional;
• the purpose of the test;
• whether the test is invasive (e.g., drawing blood or bodily
fluids);
• what the test measures;
• whether the test is normally given in a medical facility; and
• whether medical equipment is used.37
Depending on the nature of the information sought a test such as a physical agility test could be
either a medical examination or a permissible preoffer examination. If the physical agility test
measures only an applicant’s ability to lift thirty pounds as an essential job function the test is not
a medical examination. If the employer measures the applicant’s biological responses while
lifting the test is a medical examination and is prohibited in the preoffer stage.
If an employer wishes to revoke the conditional offer because of the results of the medical
examination the employer must be certain that the criteria used to exclude the applicant is job
related and consistent with business necessity.38 Employers may not use medical examinations to
simply screen out individuals with disabilities. Minnesota law obligates employers to notify
applicants or employees if an adverse decision that affects hiring, firing, or promotions is based
on an applicant’s health records or medical information.39 The notice must be sent to the
employee within ten days after the employer has made the final decision.40
Even if a test is not considered a “medical” examination federal and state discrimination laws
place limits on an employer’s ability to use nonmedical test results to screen out applicants. An
employer cannot use a test that either is intended to discriminate against a protected class of
applicants or has an adverse impact on a protected class that is not job related. Minnesota law
provides that an employer may administer preemployment tests only if such tests measure only
essential functions of the job, are required of all applicants, regardless of disability, and
accurately measure the applicant’s attitude, achievement level, or whatever factors they purport
to measure, rather than reflect the applicant’s impaired sensory, manual, or speaking skills unless
such skills are essential and are the factors being tested.41 For some positions a physical agility
or skills test may be appropriate and may not constitute a medical examination. Such tests
measure an applicant’s ability to perform the physical requirements of the job if applicants are
required to perform simulated tasks. The tasks should mirror the real tasks to be performed on
the job as closely as possible.
Some employers routinely administer examinations designed to test the honesty or integrity of
applicants. Both federal and state law controls whether these tests are permissible. The most
commonly recognized test of this nature is the lie detector or polygraph. Employers may not use
this test with respect to applicants or employees. At the federal level the Employee Polygraph
Protection Act, 29 U.S.C. § 2001-2009, imposes severe restrictions on the use of such tests. The
Minnesota counterpart to this law is Minn. Stat. § 181.75. This statute provides that an employer
or agent may not “directly or indirectly solicit or require a polygraph, voice stress analysis, or
any test purporting to measure the honesty of any employee or prospective employee.42 The
purpose of this statute is to protect an individual’s expectation of privacy, to discourage an
employer’s ability to demand such an intrusive test in conjunction with employment, and avoid
employee coercion and intimidation.43 This statutory restriction is applicable to both public and
private employers unlike the federal statute this provision has no public safety exception to the
absolute ban on use of such tests.
Tests other than polygraph and honesty tests are for the most part unregulated but employers
should keep in mind that the general testing requirements discussed earlier must be followed.
These tests are often referred to as “pencil and paper tests.” Many of these tests are designed to
measure organization skills, tendency for violence, tendency for illegal conduct, issues with
authority, or other personality characteristics and in many instances honesty. So long as the test
is limited to determining personality traits, as opposed to mental conditions, these tests will most
likely be deemed nonmedical. If the examination would reveal a medically recognized mental
disorder or impairment, it is more likely a medical examination and should not be given in the
preoffer stage. If the examination is administered or interpreted by a medical or psychological
professional the test may be deemed a medical examination and should not be administered in
the preoffer stage.
DRUG AND ALCOHOL TESTING
Whether an employer may test an applicant for drug and alcohol use is controlled by both federal
and state law. Where state law provides applicants with greater rights the employer must comply
with the more restrictive state law requirements. Because the ADA and Minnesota law have
different requirements and limitations and treat drug and alcohol use in a different manner,
employers must ensure that their policy is consistent with both federal and state law. The
differences between the ADA and Minnesota law are described below. Public sector employers
are prohibited from conducting unreasonable searches and seizures under the Fourth Amendment
to the United States Constitution. When the government compels an individual to provide
samples of either blood or bodily fluids the Fourth Amendment is implicated. Public employers
must be careful not to violate an applicant’s constitutional rights in implementing and
administering a drug testing policy.
The ADA does not treat alcohol use and drug use in a similar manner. Under the ADA drug
testing is not a “medical examination” and as such is not subject to preoffer limitations described
in the statute.44 The ADA expressly authorizes employers to require preoffer drug testing and
permits employers to take adverse action based on the test results.45 Individuals who are current
users of illegal drugs are not protected by the Act.46 Although the ADA allows preoffer drug
tests Minnesota law prohibits such tests before a conditional offer has been extended and
imposes additional restrictions on employers.
Alcohol use and addiction is afforded greater protection than drug use under the ADA. Under the
ADA a test for alcohol use is a medical examination and cannot be administered unless a
conditional employment offer has been made.47 The test must be job related and consistent with
business necessity. Employees with a current addiction to alcohol may be a qualified individual
with a disability and may be entitled to a reasonable accommodation to perform the essential
functions of the job. An applicant who tests positive for alcohol use cannot be discriminated
against because he or she is an alcoholic unless the applicant is unable to perform the essential
functions of the job even with a reasonable accommodation.
The primary Minnesota statute regulating alcohol and drug testing in the workplace is the
Minnesota Drug and Alcohol Testing in the Workplace Act, Minn. Stat. § 181.950-57. This
statute applies to all public and private employers with one or more employees. Because the
statute is more restrictive than the ADA with respect to testing applicants for drugs and alcohol
Minnesota employers must comply with the more stringent state law.
The Minnesota statute does not distinguish between drug and alcohol use. Testing may not occur
until a conditional employment offer has been extended to the applicant. Before a Minnesota
employer can test for drug or alcohol use in the workplace the employer must have a written
testing policy in place that complies with the requirements of Minn. Stat. § 181.951, subd. 1(b).
All employees and applicants subject to the policy must be given timely written notice of the
policy, the employer may only conduct testing under the specific conditions outlined in the
statute and the test must be conducted in accordance with the reliability and fairness standards
specified in the Act. An employer may “require or request” an applicant to undergo drug and
alcohol testing only if the employer has extended a conditional offer of employment to the
applicant and the employer requires all applicants for the position sought to take the test.48 If an
applicant refuses to undergo mandatory testing the employer may withdraw the offer of
employment.
MINNESOTA LAWFUL CONSUMABLE PRODUCTS ACT
The MHRA and the Minnesota Lawful Consumable Products Act (MLCPA) also control
whether an employer can take adverse employment action against an applicant based on the
results of drug or alcohol testing. Both statutes limit an employer’s right to take adverse action.
The MLCPA limits an employer’s ability to take adverse action against an applicant who uses a
lawful consumable product such as tobacco and alcohol during nonwork hours.49 An employer
cannot take adverse action against an applicant who tests positive for off-duty alcohol use. This
law does not apply to adverse action based on alcohol use on the job. The MLCPA does not on
its face regulate drug or alcohol testing. It does not extend to conditions resulting from drug or
alcohol abuse which prevent an individual from performing the essential functions of the job or
that create a direct threat of harm to the property or safety of others.50
REFERENCE CHECKS
An important tool that can be used is to check references. Prospective employers typically ask
applicants to provide personal or professional references who can vouch for the applicant’s
abilities. Employers also find themselves on the receiving end of reference inquiries. While
many employers have grown to fear liability for such checks there are ways to convey and obtain
this data with little liability to the prospective or former employee.
One of the best ways to limit the risks associated with providing references is to develop a strict
policy and follow it closely. One of the keys to minimizing the risks associated with references is
to centralize the flow of information as to what your agency seeks and releases. Centralizing the
process helps control not only the information that you provide, but also the person who is
providing the information. Supervisors and others who were close to an employee may be likely
to provide irrelevant, nonfactual personal information about an employee that cannot be proven
or are not subject to a signed informed consent. Stray remarks, defamatory statements, and
comments designed to interfere with job prospects can produce a lawsuit.
In addition to limiting who is allowed to give or seek references it is essential to have a
written policy outlining what information can be released to prospective employers. For public
employers this policy will largely be governed by the Minnesota Government Data Practices Act
and Minn. Stat. 13.43 discussed elsewhere in this book. Under the Act a great deal of
information about a current or past public sector employee is public data. Nearly all remaining
date will be classified as private data. Private personnel data generally cannot be released to a
third party unless the data subject has signed an informed consent. If such a document has been
provided the public employer has no legal choice but to act pursuant to that consent. Failure to
do so can create liability for violation of the Data Practices Act. A sample informed consent is
included in these materials.
Due to rising fear about defamation lawsuits, many employers, particularly in the private sector,
have adopted a policy of providing only skeletal information, usually limited to period of
employment, job title, and salary. This limited information can still be useful. A check to verify
dates of employment, position and salary can help an employer detect resume fraud.
In an effort to expand the willingness of employers to provide reference checks in 2004 the
Minnesota Legislature enacted Minnesota Statute §181.967. An employer or former employer
who complies with this statute and provides the information in a pre-employment background
investigation authorized by the statute is granted major immunity from liability. Under Minn.
Stat. § 181.967, subd. 2 no civil action can be maintained against such an employer by a former
employee for the disclosure of the designated information to a prospective employer or
employment agency unless the employee or former employee can demonstrate by clear and
convincing evidence that the information was false and defamatory and the employer knew or
should have know the information was false and acted with malicious intent to injure the current
or former employee. Under the remaining portions of the statute its provisions provide what data
can be disclosed and the process by which it is disclosed. Subd. 3 provides that a private
employer in response to request for information may disclose dates of employment,
compensation and wage history, job description and duties, training and education provided by
the employer and acts of violence, theft, harassment or illegal conduct documented in the
personnel record that resulted in disciplinary action or resignation in the employees written
response, if any, contained in the employees personnel record. When such a disclosure is made it
must be done in writing with a copy sent contemporaneously by regular mail to the employees
last known address. With the written authorization of the current or former employee the private
employer may also provide written employee evaluations conducted before the employees
separation from the employer, the employees written response if any contained in that personnel
record, written disciplinary warnings and actions in the five years before the date of the
authorization and any employees written response and written reasons for separation from
employment. That information also needs to be contemporaneously provided to the employee or
former employee.
Minn. Stat. § 181.967 also addresses disclosure of personnel data by a public employer although
because of the provisions of the Data Practices Act, Subd. 4 is largely redundant. Under subd. 4
the disclosures authorized in subd. 2 also apply to all public personnel data and private personnel
data as defined under Minn. Stat. § 13.43 as long as a written authorization is obtained from the
current or former employee.
In some circumstances an employer could be held liable for failing to provide information about
former employees. In Randi W v. Muroc Joint Unified School. Dist. 49, 14 Cal. 4th 1066 (1997),
the California Supreme Court held that a former employer could be held liable in negligence for
failing to provide information to a subsequent employer conducting a background check. The
former employer provided only “misleading half-truths” about the prospective employee and
failed to warn the prospective employer that the individual had twice been forced to resign over
allegations of sexual misconduct with children. The employee was hired and molested a student.
The court held that the molestation was foreseeable and that the former employer was liable for
damages because it had failed to warn the prospective employer about the employee. Although
Minnesota has not yet recognized this cause of action, the Minnesota Supreme Court and at least
one federal court has recognized the potential liability under such a theory under Minnesota
law.51
REFERENCES FOR SPECIFIC OCCUPATIONS
Psychotherapists
In at least one area of Minnesota law a former employer may be liable for not providing a
sufficient or honest reference. Minn. Stat. Chapter 148A creates a potential cause of action
against an employer or former employer of a psychotherapist for the psychotherapist’s sexual
exploitation of a patients.52 A current employer may be liable for a psychotherapist’s actions if
the employer knows or has reason to know that the psychotherapist engaged in sexual conduct
with any patient or former patient or fails to make inquiry of a former employer that employed
the psychotherapist within the last five years concerning the occurrence of sexual contacts by the
psychotherapist.53 A former employer may be liable for a psychotherapist’s sexual exploitation of
a patient if the former employer knows of sexual contact by the psychotherapist with patients or
former patients and fails to disclose the occurrence of these contacts in response to a written
request by another prospective employer.54 The statute exempts an employer from liability if the
employer complies with the statute in good faith.55 Arguably this would include an exemption
from a defamation claim brought by the psychotherapist against an employer providing a
reference. It is also worth recalling that under defamation law, while it will not prevent being
sued, truth is an absolute defense to such a suit.
Peace Officers
Law enforcement agencies are required to conduct thorough background investigations on
applicants for the position of a licensed peace officer. Liability concerns have caused nearly
every criminal justice agency to extend this policy to other staff positions within the office,
including correctional officers, dispatchers and office staff. Minnesota law requires all employers
except certain state government entities to make employment information available to a law
enforcement agency conducting a background investigation for a peace officer position.56 The
statute defines employment information to include written information related to job
applications, performance evaluations, attendance records, disciplinary actions and the eligibility
for rehire.57 The law exempts an employer from liability for releasing information to a law
enforcement agency under this section absent fraud or malice by the employer.58
The law enforcement agency must comply with two prerequisites before an employer must
release requested employment information. The first is the request must be made in writing and
must be signed by a sworn authorized representative of the law enforcement agency.59 The
second is the request must be accompanied by an original authorization and release signed by the
employee or former employee.60 Once the law enforcement agency satisfies these requirements
the employer must comply with the request. If
the employer refuses to disclose requested information the law enforcement agency may obtain a
court order directing compliance with the request.61 Failure to comply with the court order may
result in sanctions for contempt of court.62
Firefighters
A fire chief or administrative head of a fire department may conduct an employment background
investigation on an applicant for a fire protection service. 63 An employer must disclose
employment information related to an employee or former employee who is the subject of such an
investigation.64 Employment information includes written information in connection with job
applications, performance evaluations, attendance records, disciplinary actions and eligibility for
rehire.65 If an employer fails to disclose this information a district court may order disclosure. 66
Failure to comply with a court’s order may subject an employer to sanctions for contempt of
court.67 If the information is subject to a confidentiality agreement between the employer and
employee the employer must disclose this fact to the fire department.68 The statute specifically
exempts the employer absent fraud or malice from civil liability for disclosure of the employment
information to a fire department.69
‘ Thomas v. City of Omaha, Douglas County, Nebraska. 63 F.3d 763 (8th Cir. 1995).
2
41 C.F.R. § 60-1.12(a).
3
Minn. Stat. § 363A.08, subd. 4; McClure v. Sports and Health Club, Inc., 370 NW2d 844 (Minn. 1985); King
v. Trans World Airlines, Inc., 738 F.2d 255 (8th Cir. 1984).
4
Minn. Stat. Chpt. 364.
5
42 U.S.C. § 12112(d); Minn. Stat. § 363A .08, subd. 4.
6
Interpretative Guidance on Title I of the Americans With Disabilities Act, 29 C.F.R. app. Pt. 1630.14(a),
Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations.
7
Minn. Stat. § 363A.20,subd. 8.
8
Id.
9
Ponticas v. KMS Investments 331 NW2d. 97 (Minn. 1983); Yunker v. Honeywell, Inc., 496 NW2d. 419
(Minn. App. 1993).
10
Minn. Stat. § 364.03, subd. 1.
11
EEOC Policy Guidance on the Consideration of Arrest Records, N-915-061, EEOC Compliance Manual (CCH);
Reynolds v. Sheet Metal Workers Local 102, 498 F. Supp. 952 (D. D.C. 1980), aff’d702 F.2d 221(D.C. Cir.
1981).
12
Green v. Missouri Pacific R.R. Co., 523 F.2d 1290 (8th Cir. 1975).
13
EEOC Practical Guidance on Nondiscrimination in Recruitment, Selection, and Hiring; Johnson v. Pike Co., 332
F. Supp. 490 (C.D. Cal. 1971).
‘° EEOC v. United Virginia Bank/Seaboard Nat’l, 615 F.2d 147 (4th Cir. 1980).
15
15 U.S.C. § 1681a(d).
16
15 U.S.C. § 168la(h).
17
15 U.S.C. § 1681a(f).
18
Hoke v. Retail Credit Corp., 521 E.2d 1079 (4th Cir. 1975).
19
15 U.S.C. § 1681b(a).
20
15 U.S.C. § 1681g(c).
21
15 U.S.C. § 168 lb (b)(3).
22
15 U.S.C. § 1681a(e).
23
15 U.S.C. § 1681a(e).
24
15 U.S.C. § 1681d.
25
15 U.S.C. § 1681d(b).
26
15 U.S.C. § 168 lb (b)(2)-(3).
27
15 U.S.C. § 168 Im (a).
28
15 U.S.C. § 1681n.
29
Minn. Stat. § 13C.02, subd. 1.
30
Minn. Stat. § 13C.02, subd. 2.
31
Id.
32
Minn..Stat. § 363A.20, subd. 8.
33
42 U.S.C. 12112(d)(4), 12112(d)(2)(B); 29 C.F.R. § 1630.14 (b)(3).
34
42 U.S.C. 12112(d)(2)(A); 29 C.F.R. § 1630.13(a); Minn. Stat. § 363A.20, subd. 8.
35
Minn. Stat. § 363A.20, subd. 8.
36
EEOC Enforcement Guidance: Pre-employment Disability Related Questions and Medical Examinations, EEOC
Oct. 10, 1995.
37
Id.
38
42 U.S.C. § 12112(b)(6).
39
Minn. Stat. § 363A.20, subd. 8.
40
Id.
41
Minn. Stat. § 363A.20, subd. 8.
42
Minn. Stat. § 181.75, subd. 1.
43
Hanson v. Brothers and One, Inc., 491 N.W.2d 292 (Minn. App. 1992).
44
42 U.S.C. § 12114 (d)(1).
45
42 U.S.C. § 12114(d)(2); 29 C.F.R. § 1630.16(c).
46
42 U.S.C. § 12114(a).
47
EEOC Technical Assistance Manual for the ADA, § 8.9.
48
Minn. Stat. § 181.951, subd. 2.
49
Minn. Stat. § 181.938, subd. 2.
50
Minn. Stat. § 363A.03, subd. 36.
51
Smith v. Brutger Co., et. al, 569 N.W.2d 408 (Minn. 1997); Grozdanich v. Leisure Hills Health Centers Inc., 25 F.
Supp. 2d 953 (D. Minn.1998).
52
Minn. Stat. § 148A.03.
53
Minn. Stat. § 148A.03(a).
54
See Minn. Stat. § 148A.03(b).
55
Minn. Stat. § 148A.03(d)
56
Minn. Stat. § 626.87.
57
Minn. Stat. § 626.87, subd. 7.
58
Minn. Stat. § 626.87, subd. 4.
59
Minn. Stat. §626.87, subd. 2.
60
Id.
61
Minn. Stat. § 626.87, subd. 3.
62
Id.
Minn. Stat. § 299F.036, subd. 1.
64
Minn. Stat. § 299F.036, subd. 2.
65
Minn. Stat. § 299F.036, subd. 6.
66
Minn. Stat. § 299F.036, subd. 3.
63
Center on Quality Policing
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Police Recruitment
and Retention for the
New Millennium
The State of Knowledge
Jeremy M. Wilson, Erin Dalton, Charles Scheer,
Clifford A. Grammich
Supported by the U.S. Department of Justice’s
Office of Community Oriented Policing Services
Center on Quality Policing
A RAND INFRASTRUCTURE, SAFETY, AND ENVIRONMENT CENTER
This project was supported by Cooperative Agreement 2007CKWXK005
awarded by the Office of Community Oriented Policing Services, U.S.
Department of Justice. The opinions, findings, and conclusions or
recommendations contained herein are those of the authors and do not
necessarily represent the official position of the U.S. Department of
Justice. References to specific companies, products, or services should
not be considered an endorsement of the product by the authors or the
U.S. Department of Justice. Rather, the references are illustrations to
supplement discussion of the issues. This project was conducted under
the auspices of the RAND Center on Quality Policing (CQP), part of
the Safety and Justice Program within RAND Infrastructure, Safety, and
Environment (ISE).
Library of Congress Cataloging-in-Publication Data
Police recruitment and retention for the new millennium : the state of knowledge /
Jeremy M. Wilson.
p. cm.
Includes bibliographical references.
ISBN 978-0-8330-5017-5 (pbk. : alk. paper)
1. Police—Recruiting—United States. 2. Police—United States—Personnel
management. 3. Employee retention—United States. I. Wilson, Jeremy M., 1974HV8141.P5933 2010
363.2’20973—dc22
2010027437
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Preface
Maintaining the police workforce level is one of the most salient challenges facing law enforcement today. In the long run, both the supply
of and demand for qualified officers are changing in a time of increasing attrition, expanding law-enforcement responsibilities, and decreasing resources. These contribute to the difficulties that many agencies
report in creating a workforce that represents the demographics of their
communities, that is committed to providing its employees the opportunity for long-term police careers, and that effectively implements
community policing.
These difficulties, perhaps surprisingly, have persisted through
recent recessionary times and may become more challenging as the
economy improves. Department resources have continued to decrease
and responsibilities to increase, with agencies being asked to do more
police work with fewer resources. Some agencies report staffing shortages
(a small number still claim continuing drops in applications). Others
question whether the long-term commitment of applicants and current
officers will persist in times of economic improvement.
To help address these challenges and provide lessons for the lawenforcement community, this monograph does not offer any new data
but rather summarizes for police practitioners lessons on recruiting and
retaining diverse, effective workforces. It provides a means for local officials
to identify what has been tried elsewhere and what might be applicable in
their own communities. It is a broad analysis of issues confronting many
agencies and how these have developed over time. Each agency will face
unique circumstances that it must consider in workforce planning; this
iii
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Police Recruitment and Retention for the New Millenium
monograph can provide guidance on relevant lessons learned elsewhere.
Focusing specifically on recruitment and retention, this guide does not
address other key personnel planning issues, such as specific ways of
determining staffing need, allocation of staffing resources, distribution
of staff attributes and qualities, and opportunity costs and implications
of implementing recruiting and retention strategies on other parts of the
organization, which are also important to development of an effective,
efficient workforce. Challenges might vary by agency, especially by local
conditions confronting each agency.
This monograph builds on other resources the RAND Center on
Quality Policing has developed with the support of the U.S. Department of Justice’s Office of Community Oriented Policing Services,
particularly a Web-based recruitment and retention clearinghouse (see
RAND Corporation, 2010). This monograph also builds on a national
summit of police recruitment and retention, also supported by the Office
of Community Oriented Policing Services, held at RAND in June 2008
(for the report, see J. Wilson and Grammich, 2009a; for the briefings,
see COPS, undated[a]). It should be of interest to policymakers and
researchers concerned with understanding and responding to police
personnel challenges.
The RAND Center on Quality Policing provides research and
analysis on contemporary police practice and policy. By determining
what practices are most cost-effective and results-oriented, the center’s
work helps law-enforcement agencies across the United States make
better operational decisions and consistently perform at their best. For
more information on the center, visit its website, http://cqp.rand.org/,
or contact the center’s director, Greg Ridgeway, at Greg_Ridgeway@
rand.org. For more information on this monograph or the Recruitment and Retention Clearinghouse, write to Jeremy Wilson, the lead
author and director of the Recruitment and Retention Clearinghouse,
at jwilson@msu.edu.
Contents
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Figures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Tables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii
Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xix
CHAPTER ONE
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Objective and Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Outline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CHAPTER TWO
The Dynamic Police Staffing Challenge: The Bucket Metaphor . . . . . . . . . 3
The Bucket Metaphor and Demand for Police Officers . . . . . . . . . . . . . . . . . . . . . . . 3
The Hole in the Bucket Is Widening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Baby-Boom Generation Retirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Attrition Is Widening the Hole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Changing Generational Preferences and Expectations . . . . . . . . . . . . . . . . . . . . . . 7
Budget Crises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Military Call-Ups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Organizational Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Faucet (Supply) Is Tightening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Decrease in Qualified Applicant Pool . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Changing Generational Preferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Increased Competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
v
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Police Recruitment and Retention for the New Millenium
Expanded Skill Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Uncompetitive Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Organizational Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
The Bucket (Demand) Is Expanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Community Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Homeland Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Emerging Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
The Weakened Economy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
CHAPTER THREE
Retention: Plugging the Hole in the Bucket . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
What Is Turnover? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Effects of Turnover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Is Turnover a Particularly Difficult Problem for Law Enforcement? . . . . . . . . 33
Who Leaves, and When Do They Go? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Why Do Officers Leave? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Other Opportunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Personal Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Organizational Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Employee Needs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
What Can Agencies Do to Prevent Turnover? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Planning and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Reducing the Financial Impact of Turnover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Enhancing Compensation and Other Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Employee Engagement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Improving Organizational Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
CHAPTER FOUR
Recruitment: Filling the Bucket . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Police Recruitment Practices: Past and Present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Determining Staffing Needs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Attracting Candidates: Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Attracting Candidates: Internal Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Contents
vii
Attracting Candidates: Outreach Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Supplying Candidates: Opening Up the “Faucet” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Selecting Candidates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Predicting Future Success in Applicants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
CHAPTER FIVE
The Most-Promising Practices for Maintaining Police Workforce
Levels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Figures
S.1.
2.1.
2.2.
2.3.
2.4.
2.5.
3.1.
The Bucket Metaphor and Demand for Police Officers . . . . . . . . xiv
The Bucket Metaphor and Demand for Police Officers . . . . . . . . . . 3
Attrition Is Widening the Hole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
New Orleans Police Department Hires
and Separations, 2004 to 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
The Shrinking Supply Is Reducing the Flow . . . . . . . . . . . . . . . . . . . . . 15
Expanding Duties Increase the
Demand for Police Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Conceptual Model of Determinants of Attrition . . . . . . . . . . . . . . . . 37
ix
Tables
2.1.
2.2.
3.1.
3.2.
3.3.
5.1.
Budgeted and Actual New Orleans Police Officer
Levels, Before and After Hurricane Katrina . . . . . . . . . . . . . . . . . . . . . . 11
New Orleans and Houston Police
Department Salary Comparison, 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Summary of Example Employee Turnover Ratios . . . . . . . . . . . . . . . 31
Summary of Costs Associated with Police Turnover . . . . . . . . . . . . 32
Means of Limiting the Effects of Turnover . . . . . . . . . . . . . . . . . . . . . . . 45
Practices and Relevant Research for Improving
Police Recruitment and Retention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
xi
Summary
Maintaining the police workforce level is continually one of the greatest challenges facing law-enforcement agencies. One indication of
this challenge is the recent appropriation of $1 billion to the federal
Office of Community Oriented Policing Services (COPS) to help stabilize law-enforcement positions. The program received more than
7,000 applications requesting more than $8 billion to support nearly
40,000 sworn-officer positions.
To help address these challenges and provide lessons for the lawenforcement community, the COPS office provided support to the
RAND Center on Quality Policing to compile information on promising
practices for police recruitment and retention. These are available at the
Recruitment and Retention Clearinghouse website (RAND Corporation,
2010). This monograph summarizes for police practitioners lessons evident in these materials on maintaining diverse, effective workforce levels.
A Metaphor for Police Staffing Challenges
Diminishing sources of recruitment, increasing causes for attrition,
and broadening police responsibilities all shape questions of workforce
supply and demand. To conceptualize and delineate the distinct forces
at work, we use the metaphor of a bucket (Figure S.1).
In this metaphor, the size of the bucket represents the absolute need
for police officers. The water level, which rises and falls with accession
and attrition over time, frequently does not fill the bucket because the
demand for officers exceeds the ability to meet it due to resource or
xiii
xiv
Police Recruitment and Retention for the New Millenium
Figure S.1
The Bucket Metaphor and Demand for Police Officers
Need/Demand
Allocation
Staffing
deficit
Unmet
demand
Current
level
RAND MG959-S.1
other limitations. The difference between the need and the current level
represents unmet demand for officers. The authorized or allocated level
of officers, representing the number of officers for which an agency is
budgeted, is usually between the current level of officers and demand
for them and is politically determined by such variables as workload,
service orientation, and available resources.
Three forces can affect the bucket and the “water” in it. First,
officers might be “leaked” through a hole in the bucket caused by attrition. Attrition can result from several sources. Budget crises might
cause jurisdictions to reduce their number of officers. Organizational
characteristics might become unappealing to officers who decide to
pursue work elsewhere. A pending wave of baby-boom generation
retirements threatens to reduce experience levels of police departments
across the nation. Increasing numbers of military call-ups are requiring
more officers for longer periods of time on nation-building and other
military duties. Finally, younger generations of workers might be more
likely than older ones to change careers to find the work they like best.
Understanding these and other sources of retention problems is critically
important. It is far more costly and time-consuming to recruit an officer
than to retain one. Reducing retention problems can alleviate much of
the need for recruiting.
Second, new officers might be less likely to flow from the “faucet”
of supply into the bucket than they once were. Changing generational
preferences mean that not only might younger workers be more likely
to change careers once entering policing—they might be less likely to
Summary xv
enter policing at all. Furthermore, increasing levels of illicit drug use,
of obesity, and of debt have led to decreases in the qualified applicant
pool (Derby, 2008). Expanded skill requirements for police work further
constrict the pool of qualified applicants. While many applicants (e.g.,
the college-educated) can meet these requirements, there is also competition from other sources for them. Just as budget crises can lead to
increased attrition, so also can they lead to reduced salaries and benefit
packages that are less likely to attract candidates to policing. Departments might also fail to take full advantage of electronic media in their
recruiting efforts.
Third, the capacity of the bucket is expanding as police work broadens, creating the demand for more “water” to fill it. The adoption of
community policing has broadened the duties of police agencies, which
increases the number of functions police undertake, especially for larger
departments. Increased emphasis on homeland security has also widened
the responsibilities of local police officers, increasing the demand for
them. Finally, as a result of globalization, technological advancement, and
greater awareness, the scope of crime the law-enforcement community
must now address continues to grow. In sum, local police roles have
expanded to include not only benign order-maintenance duties, such as
answering noise complaints and solving neighborhood disputes, to new,
occasionally militaristic roles, such as counterterrorism, informationsharing, and immigration enforcement.
Filling the Bucket: How Can Police Agencies Improve
Recruitment and Retention?
There is little that local police agencies can do to limit the scope of their
work and the subsequent demand for officers. Nevertheless, there are
some practices they can adopt to improve recruitment and retention
and, hence, their ability to meet the demand for services.
First, planning, analysis (including analysis of demographic trends),
and surveys and interviews with officers about job satisfaction can help
agencies understand their prospects for attracting and keeping officers.
Second, agencies can reduce turnover by offering realistic job previews
xvi
Police Recruitment and Retention for the New Millenium
to candidates and requiring contracts with new employees. Third, agencies can attract and retain candidates by enhancing compensation and
other benefits. Fourth, agencies can increase retention through greater
employee engagement, including efforts to increase employee input in
decisionmaking and other evaluation and feedback opportunities. Improving organizational effectiveness through better hiring and management
practices can improve the agency’s image not only with employees but
also with the community.
Research on recruitment and retention is evolving and still has
some significant gaps. Local agencies will need to identify what has been
learned elsewhere and apply the lessons to their specific problems. This
guide can provide a means for local officials to identify what has been
tried elsewhere and what might be applicable to their own situations.
Acknowledgments
We would like to thank the COPS office for providing support to
create this resource. Additionally, Matthew Lysakowski and Matthew
Scheider provided useful comments throughout its development. We
appreciate the informal feedback provided to us by numerous police
practitioners about the issues we raise, and the formal comments on
drafts provided to us by our peer reviewers, Nelson Lim and Bruce
Taylor. Lisa Bernard and RAND’s publication team improved the
readability of the monograph by offering effective editorial and production support. We thank all of these individuals (and those we do
not identify specifically) for significantly enhancing the final product.
xvii
Abbreviations
CBR
chemical, biological, and radiological
COPS
Community Oriented Policing Services
FBI
Federal Bureau of Investigation
LAPD
Los Angeles Police Department
LEAA
Law Enforcement Assistance Administration
PCSO
Pinal County Sheriff’s Office
PERF
Police Executive Research Forum
RSS
really simple syndication
SWAT
special weapons and tactics
xix
CHAPTER ONE
Introduction
In early 2009, Congress appropriated $1 billion for the U.S. Department
of Justice, Office of Community Oriented Policing Services (COPS),
for the COPS Hiring Recovery Program to help stabilize law-enforcement positions. The COPS office received a staggering 7,272 applications for this program requesting $8.3 billion to support more than
39,000 sworn-officer positions throughout the United States (COPS,
2009a). These statistics highlight two glaring facts: The need for police
officers is great, yet the ability to support the officers is limited.
While recent recessionary conditions have mitigated some of these
problems for some agencies, others report staffing shortages (a few even
report continuing drops in applications), and still others report concern
that they might not be able to retain candidates once economic conditions improve. Police agencies generally have not applied known and
demonstrated tenets of personnel management to their occupation.
Researchers have provided few empirical lessons about what works and
what does not in recruiting and retaining officers, leaving gaps on topics of concern to law-enforcement officials. Law-enforcement agencies
typically lack the time, resources, and expertise to collect and assess data
and to develop lessons for their own personnel planning needs.
Objective and Approach
This monograph synthesizes research about promising practices for
recruitment and retention, focusing on empirical studies. We explain
what is known about various strategies, drawing heavily on the policing
1
2
Police Recruitment and Retention for the New Millenium
literature but supplementing that by highlighting the effectiveness of
these strategies in the military, medicine, education, business, and other
professions. This monograph does not present original research but can
help local officials, each of whom will face unique circumstances, identify what has been tried elsewhere and might be applicable to their
own communities. While, as noted, some gaps remain in the literature,
and some of the literature is based more on anecdote than empirical
research, we trust that this review can help local officials understand
what is and is not known. The resources summarized in this monograph are drawn from those we have compiled for the Recruitment and
Retention Clearinghouse website (RAND Corporation, 2010).
Outline
In the next chapter, we introduce the recruiting and retention challenges confronting police organizations, using the metaphor of a bucket
to delineate the issues and circumstances involved in understanding
the problem and changes in the organizational context of policing. We
use the bucket metaphor in subsequent chapters to illustrate how staffing challenges arise and how police organizations can respond to them.
Chapter Three summarizes what is known about retaining personnel.
Chapter Four highlights lessons about recruiting personnel. We choose
to discuss retention first to highlight three facts: It is far more costly
and time-consuming to recruit an officer than to retain one; improving
retention can alleviate the need to recruit; and retention issues are frequently overshadowed by discourse about recruitment. The final chapter summarizes the most-promising recruitment and retention practices based on current research.
CHAPTER TWO
The Dynamic Police Staffing Challenge: The
Bucket Metaphor
Diminishing sources of recruitment, increasing causes for attrition, and
broadening police responsibilities all shape questions of workforce supply and demand. To conceptualize and delineate the distinct forces at
work, we use the metaphor of a bucket (Figure 2.1). In this metaphor,
the size of the bucket represents the absolute need or demand for police
officers, which will vary by agency based on workload determinants and
service objectives.
The Bucket Metaphor and Demand for Police Officers
The water inside the bucket represents the current level of police strength.
The water level varies over time with accession and attrition and frequently does not fill the bucket because the demand for officers exceeds
Figure 2.1
The Bucket Metaphor and Demand for Police Officers
Need/Demand
Allocation
Staffing
deficit
Unmet
demand
Current
level
RAND MG959-2.1
3
4
Police Recruitment and Retention for the New Millenium
the ability to meet it (due to resource and other limitations). The
difference between the need and the current level represents the true
unmet demand for police officers.
Usually somewhere between the current level of officers and the
demand for them is the authorized or allocated level of officers. This
represents the number of officers for which an agency is budgeted. A
somewhat artificial threshold, the allocation level is politically determined
by such variables as workload, service orientation, and available resources.
The staffing deficit is the difference between the allocated and actual
levels of police strength. Actual staffing levels rarely rise above allocated
levels, although this can occur when an agency is building up capacity
in anticipation of attrition. The bucket metaphor visually illustrates that
an agency can, in fact, be understaffed when it is operating with its full
complement of allocated officers.
Three forces can affect the bucket and the amount of water in it.
Officers might be “leaked” through a “hole” caused by attrition. New
officers might be less likely to “flow” from the “faucet” of new supply.
The bucket might expand as police work broadens. These issues might
not affect every agency equally or in the same magnitude, but there is
evidence of them affecting at least some agencies both in the short and
long terms. Every agency has its own unique circumstances that must
be considered in workforce planning.

The Hole in the Bucket Is Widening
Much of the difficulty police agencies face in maintaining their workforce
levels is a product of attrition. To be sure, attrition can be positive, as
when a department replaces retiring officers with younger, more-skilled
ones, or when it loses those who are not committed to being effective,
high-performing officers. Nevertheless, attrition can be a problem when
it occurs in waves, such as with past hiring booms ultimately resulting
in large proportions of staff retiring within a short time of one another.
This causes the attrition hole in the bucket to widen, making it increasingly difficult to maintain the actual level of officers, or the water in
the bucket.
Figure 2.2 highlights some contributors to the widening of the
The Dynamic Police Staffing Challenge: The Bucket Metaphor
5
Figure 2.2
Attrition Is Widening the Hole
Baby-boom
retirements
Changing
generational
expectations
Military
call-ups
Organizational
characteristics
Budget Crises
RAND MG959-2.2
hole in the bucket: baby-boom generation retirements, changing generational preferences, budget crises, military call-ups, and organizational
characteristics.
Baby-Boom Generation Retirements
Baby-boom generation officers on the cusp of retirement are the greatest pending concern. Officers of this generation are beginning to retire,
and the number of retirements is likely to grow considerably in the
next few years as the number of officers eligible for retirement increases
significantly.
This pending wave of retirements is already affecting departments.
In the early 2000s, New York City faced an exodus of officers who had
20 or more years of service, prompting the department to offer retention
bonuses and incentives (“NYPD Facing a Flood of 20-and-Out Retirees,” 2000). By the end of the decade, facing the additional challenge of
paying pensions that the city budget could not afford, New York Mayor
Michael Bloomberg proposed abolishing the “20-and-out” rule in his
2009 budget as a way to end the out-migration (Bloomberg, 2009). In
Chicago, an early retirement option is expected to increase, from just
more than 500 to nearly 900, the deficit of officers below the overall
authorized level of 13,500, a problem exacerbated by the department’s
need to wait for federal funding before scheduling new academy classes
(Spielman, 2009). Likewise, the proportion of retirement-eligible officers
6
Police Recruitment and Retention for the New Millenium
in Edmonton, Alberta, is expected to increase from less than 10 percent
i…
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