Most employers are aware that there are traps for the unwary in the new employee hiring process under various state and federal laws. Relying on ethics and “good instincts” can get employers through a lot of difficult situations, but even those admirable qualities are unlikely to provide all the guidance needed to understand what is, and is not, appropriate in the new hire process.
To help understand legal issues in the hiring process, we have decided to commit to a multi-part blog on these issues. To kick off the process, we decided to start with a few basic pointers about the application process, itself. Future posts will discuss use of social media in hiring, ADA considerations in hiring, new EEOC enforcement guidance on background checks, and related topics.
Before starting to advertise or post a position (even if it’s a pre-existing job), stop and think about what is really needed in the job and draft an accurate job description that is a true “fit” for what you need. Then, stick to it. Establishing the job’s legitimate prerequisites, duties, and basic functions will help guide the rest of the process (and can help provide a defense if the hiring decision is challenged in litigation). The key to fairness is sticking to these legitimate, non-discriminatory, basic requirements that are set from the beginning.
A job application should generally not ask for an employee’s age (except to confirm that the individual does not fall into the category of child labor). Requiring an applicant to state his/her age (particularly if someone younger happens to get hired for the position) can be used to demonstrate age discrimination. For similar reasons, applications should not ask for race, national origin, religion, or gender information (or military status).
If an employer is going to use a third party to check references, or to handle background check responsibilities, federal law requires that the employer provide a highly-specific separate document, along with the application, that reminds applicants of various rights they have under the Fair Credit Reporting Act (FCRA). FCRA rights are activated by a simple background check or reference check if the employer uses someone from outside the organization to handle either of these responsibilities. At a bare minimum, the FCRA-compliant initial authorization and notification of rights, must be supplied and signed by the applicant.
Complicating matters, the U.S. Equal Employment Opportunity Commission has recently come out with some very controversial guidance that tells employers – among other things – that they should not ask about criminal convictions on their applications. Although this is not a violation of fair hiring laws, it is a strong recommendation coming from the federal level, and it has many businesses concerned—as it should. Recently, attorneys general from several states have challenged the EEOC’s position on this issue and several other issues related to the use of information about criminal convictions in the hiring process. Watch for future posts dealing with this issue.