A rapidly changing legal landscape is making the application, interview and screening processes increasingly complicated. Here are the top five legal hazards in hiring that can expose employers to potential legal liabilities:
1. EEOC guidance and use of criminal records
The Equal Employment Opportunity Commission addressed its concern that criminal background checks have had a discriminatory impact on candidates that have criminal records. 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 of the offense. Employers also want to consider the time that has passed since the conviction, and the nature of the job held or sought. In addition, employers should conduct an individualized assessment; a new requirement that was introduced last year.
2. State and local “Ban the Box” laws
New “ban the box” laws are being enacted every day. “Ban the box” is the term used for the movement to remove the check box from an employment application that asks, “Have you ever been convicted of a felony?” Studies show 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. Employers should check with state and local laws for the most up to date processes.
3. Credit Reporting Act violations for adverse action
Legal actions brought against employers and background screening providers based on Fair Credit Reporting Act (FCRA) violations are on the rise. Employers want to make sure the background check is run only after receiving a signed authorization and disclosure from the applicant. They also need to send a copy of the background report and the CFPB Summary of Rights with the pre-adverse action notice, before the decision to hire is made. Once the decision is made not to hire another adverse action notice will need to be sent to the applicant.
4. Use of credit reports
Many states have restricted the use of credit reports in hiring candidates. This action is based on the premise that people who have lost their jobs are more likely to have poor credit. Most states have exceptions and require an employer to show that the use of credit reports is necessary for the specific position. The threat to employers is a claim alleging that the use of credit was discriminatory based on the candidate having bad credit.
5. Social media and state laws
Employers who use social media information when screening candidates 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.