A rapidly changing legal landscape is making the application, interview and screening processes increasingly complicated – and potentially dangerous for employers, which includes staffing firms and may also include recruiters working on a client search.
Here are the top five legal hazards in hiring and background screening that turned up during the first half of 2013:
1. EEOC Guidance and the Use of Criminal Records
The EEOC is aggressively pursuing and investigating suspected cases of disparate impact involving criminal backgrounds.
The EEOC published new guidance on the use of criminal background checks in April 2012 to address its concern that criminal background checks have an unintended discriminatory impact on African-Americans and Hispanics. In June, the Commission announced two landmark legal cases centering on the use of criminal records to disqualify candidates. Employers should review the new EEOC guidance, their own hiring policies and the criteria for criminal history to make sure they are considering the nature and gravity of the offense, the time that has passed since the conviction, and the nature of the job held or sought. They should also consider conducting an individualized assessment; a new requirement that was introduced last year. Employers can find additional tips for compliance here.
2. FCRA Violations for Notice Provisions and Adverse Action
Legal actions brought against employers and background screening providers based on Fair Credit Reporting Act (FCRA) violations are on the rise.
As the country continues to pull itself out of an economic slump, the competition for jobs remains fierce and candidates are more likely to ask questions when they are not hired. Legal issues center on appropriate written disclosures, the timing of conducting a background check (it must be after obtaining authorization and disclosure), and the adverse action process. Accuracy under the FCRA has also been scrutinized and employers should review the actions of their background providers .A list of dos and don’ts for FCRA compliance is available here.
3. State and Local “Ban the Box” Laws
An influx of new laws poses a risk to employers who are not up-to-date.
New “ban the box” laws are being enacted every day. “Ban the box” is the term used for the movement to remove the checkbox from an employment application that asks, “Have you ever been convicted of a felony?” Proponents submit that candidates have more opportunity to explain past behavior and get hired when questions about a criminal past are deferred until later in the process.
Not all ban the box laws are the same. Some states ban asking questions until after an interview; others simply require taking the question off of the application form and still other jurisdictions require waiting to ask until post-offer. The patchwork of state and local laws poses a challenge, especially for employers doing business in multiple jurisdictions or in border communities. Employers should re-evaluate their process when inquiring about criminal history to consider whether the information is job-related and whether their organization fits into one of the exemptions (i.e. for law enforcement or vulnerable populations).
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4. Social Media and State Laws
Employers who use social media information when screening may learn details about a candidate that are illegal to consider in the hiring process.
These might include religious affiliation, marital status, age or sexual orientation. Depending on who is searching and what sources are being used, FCRA protections for job applicants may also be in effect. States have also passed laws that ban an employer’s right to ask for passwords from employees and job candidates or, in some cases, to “friend” or “link in” with co-workers. More information on social media and hiring is available here.
5. Credit Reports
In May, Colorado and Nevada restricted the use of credit reports in hiring, joining a growing list of states including California, Connecticut, Washington, Hawaii, Oregon, Illinois, Maryland and Vermont.
This action is based on the premise that people who have lost their jobs are more likely to have poor credit and people with lower credit scores are less likely to become re-employed.
Most states have exceptions for certain types of positions and require an employer to show that the use of credit reports is job-related and necessary for the specific position. The threat to employers is a claim alleging that the use of credit was discriminatory based on a theory that certain protected classes statistically have bad credit.