It seems almost everywhere we turn we hear or read about a case, law or government agency taking issue with some aspect of employers’ pre-employment screening practices. Some employers who use LinkedIn, Facebook, background checks or other methods to screen employees find themselves at the receiving end of a lawsuit, EEOC or state division of civil rights charge. On the other side of the spectrum, other employers find themselves defending negligent hiring lawsuits, and allegations that they failed to adequately screen problem out employees who may have caused physical harm or financial loss to others. It sounds like a classic no-win situation. What is an employer to do? First of all, do not despair! Next, let’s talk about pre-employment screening! What is it? Why do we do it? What are the some of the more common pre-employment screening practices, and what are the more common legal pitfalls?
Pre-employment screening is the process by which an employer determines if a candidate possesses the appropriate qualifications and is otherwise a safe and appropriate match for the job and for the company. If the employer does business within a highly regulated industry certain state and federal laws may require certain types of screening. State and federal laws may also determine how and under what circumstances employers may use certain screening methods. This week, let’s get an overview of some of the more common pre-employment screening practices and we will delve deeper into many of them in the upcoming weeks.
- Questions on Applications (and in Interviews): Most employers will require candidates to complete an application. (Those who do not should seriously consider doing so!) While the application usually asks basic information, name, address, work history, there could be items on the application that are, well, questionable (aka questionable questions!). Similarly, we hear and read a lot about questions one should or should not ask on an interview. Some questions, whether asked on an application or in an interview, may give rise to a discrimination lawsuit based on gender, race, national origin, disability, etc.
- Criminal Background and Credit Checks: The Fair Credit Reporting Act (FCRA) and Equal Employment Opportunity Commission (EEOC) guidelines have much to say on this subject. The FCRA provides the nuts and bolts of how to conduct the background and credit checks. There are specific procedures to follow. An employer who fails to do so could be fined by the Consumer Financial Protection Board (CFPB) or, in the case of multiple violations face a class action lawsuit by a group of applicants or employees. The EEOC guidelines discuss when, how and under what circumstances an employer may use the information it obtains from a criminal background report or credit check. Employers who do not familiarize themselves and comply with these guidelines could face an EEOC charge, which in turn could escalate to a lawsuit.
- Motor Vehicle Report: Some employers will request a report from their State’s Division of Motor Vehicles regarding the candidate’s driving record. The Drivers’ Privacy Protection Act applies to such requests and regulates how the DMV releases and shares the information contained in such records and how a recipient can share the information. You can find more information on the DPPA here.
- Medical Exams: Can an employer require all its applicants to submit to medical exams? If so, when and under what circumstances, and, can the employer use information from the medical exam to disqualify the candidate? Again, if so, when and under what circumstances? The Americans with Disabilities Act (ADA) and the updated ADAAA will have something to say about this issue, so here too, employers must beware.
- Drug Screening: This is an area largely regulated by state laws. Some states only allow drug screening for certain types of jobs or under specific circumstances. Some states require employers to follow certain procedures before it can either disqualify a candidate or terminate an employee for a positive drug screen. Some industries are regulated by federal and/or state law and require drug screening.
- Personality or Aptitude Tests: Some employers wish to administer aptitude tests to determine if a candidate is truly qualified for the job in question. After all, not everyone is 100% truthful or honest on their résumé or in an interview. Other employers will administer personality tests in an attempt to weed out “problem” personalities. Administering such tests to some candidates and not others may give rise to a discrimination claim based on disparate treatment. Subjecting all candidates to the same test and certain groups falling within what the law considers “protected classes” tend to perform worse than non-“protected classes” may give rise to a claim that such a practice has a discriminatory impact on the protected class(es).
- Immigration/I-9/National Origin Issues: Everyone must complete within three days of their date of hire. So what’s the problem here? Can the employer require specific documents? Who can complete the I-9? Is the way in which it is completed important? Can the employer go further and ask for more proof of eligibility to work in the United States than the I-9 Form requires? Generally, no. Such a practice may give rise to “document abuse” allegations or national origin discrimination charges.
- Using Social Media to Pre-Screen: Most of us will use LinkedIn, Facebook, Twitter, or even Google to find out more about someone, particularly a job candidate. Wouldn’t any prudent employer do that–if for no other reason than to check their profiles against their resumes? Remember, there are some questions employers should not ask on an application or interview, because it is illegal to base a decision on the candidate’s response to those questions. Use of social media sites may put employers in the same quandary, in that they will have information that they cannot use in making a hiring decision.
The most common issue with most of these screening practices is whether, how and under what circumstances employers can use information they gain from them. Next week, The Emplawyerologist will start delving into the hot-button topic of background checks, and how to avoid associated legal pitfalls, so don’t miss it!
Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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