The ABC's of the Hiring Process Applications, Background Checks, Credit Reports and Other Important Considerations in Selecting Employees

The ABC's of the Hiring Process –

Applications, Background Checks, Credit

Reports…and Other Important

Considerations in Selecting Employees

Phyllis G. Cancienne, Esq.

Baker Donelson

450 Laurel Street, 20th _Floor

Baton Rouge, Louisiana 70801 225.381.7000

Overview

•  Job Application Process

•  Use of Criminal & Credit

Background Checks

•  The Fair Credit Reporting Act

("FRCA")

•  The Use of Social Media

•  The Interview and Selection

Hiring Practice Issues

•  Key to the success of your business

•  Employment related litigation

Use an Application Form—Not Just Resumes

•  Watch out for spin

•  Applications ensure uniformity

and collection of necessary information

•  Signed representations on

Application Language is Essential

job-related

•  No promise of employment

•  At-Will statement – in BOLD print

•  Signed consent to background

check

•  Equal opportunity statement

CAREFULLY Review the Application

•  Failure to sign background consent

form

•  Blank portions

•  Self-reporting

•  Failure to adequately explain

departures

•  Failure to adequately explain gaps

Consent for Background Check

•  Historical information only

•  Background investigations can

help determine applicant's "fitness" for a particular job

•  Smoke out those who may be

hiding something

•  Encourages the truth

•  Workplace violence/negligent

Negligent Hiring and Retention

•  Louisiana law requires same duty-risk analysis:

−  (a) duty owed by employer in selecting or retaining the

employee;

−  (b) breach of that duty;

−  (c) breach was cause-in-fact of the injury;

−  (d) resulting harm must fall within scope of employer's duty; and

−  (e) damages sustained by the third party.

•  EXCEPT – Additional “unique opportunity” requirement imposed for

Criminal Background Checks

background checks for specific jobs which present a “unique opportunity” to commit harm to a third party, such as childcare workers and security guards. See also, La. Rev. Stat.

15:587, et seq.

•  Otherwise, unless federal law

requires it, background checks in Louisiana are matter of

employer policy.

EEOC Guidance on Arrest and Conviction Records

(Issued April 2012)

•  EEOC has taken position that arrest

and conviction-based screening policy disproportionately

disadvantages minorities (i.e., African Americans and Hispanics)

•  Therefore, blanket disqualifications

EEOC Guidance on Arrest and Conviction Records

•  For arrests and convictions, employer should consider:

§  nature of the job,

§  nature and seriousness of the offense, and

Criminal History Screening – Best Practices

•  Consistently apply set standards

Credit Checks

•  Financial discretion or handling large amounts of cash

•  Invasion of privacy? No, but be CAREFUL

•  Employers who wish to utilize credit checks should:

−  Document necessity

−  Changing landscape

−  Confidentiality

BUT BEWARE…

EEOC has recently sued employers for excluding applicants from employment on the basis of their credit reports under a disparate impact theory, but thus far they have had little success. EEOC v.

Kaplan Higher Education Corp., 10 CV 2882 (N.D. Ohio January 28,

Fair Credit Reporting Act

Governs:

•  Extent of background information that can be gathered on an

individual, and

•  Procedures through which information can be gathered and

Fair Credit Reporting Act

•  Enacted in 1971 to protect consumer privacy rights and to hold

consumer reporting agencies (CRAs) accountable for accuracy and fairness of credit reporting and other information

•  Applies to both credit and “consumer” reports; “consumer” report

includes criminal background check

•  Applies only when employer uses

Employer FRCA Obligations

•  Can only obtain consumer reports for permissible purpose, i.e.,

employment

•  Must certify to CRA that report will be used

Employer FRCA Obligations

Three step notice and disclosure process:

1. Provide advance written notice and obtain applicant’s consent;

2. Provide pre-adverse action notice; and if applicable;

Advance Notice And Consent

•  Clear and conspicuous notice to applicant that report may be

obtained

•  Recommend that applicant be required to sign notice

•  Must secure applicant’s written consent before ordering background

check

•  Both notice and consent may be included in same document – but

Pre-Adverse Action Disclosure

•  Must inform applicant that background report, if accurate, may

cause denial of employment

•  Must be provided before adverse action taken against applicant

•  Must provide applicant with copy of report and FTC’s “Summary of

Post-Adverse Action Disclosure

•  After adverse decision, employer (or CRA) must issue another

notice

•  Must provide name, address and phone number of CRA that

supplied report and statement that they did not make decision and cannot provide reasons for it

•  Must advise applicant of right to dispute report and right to free copy

Social Media: Is Anyone Watching?

a candidate's name through a search engine (such as Google).

•  45% of employers use social

networking sites to screen employees.

•  One in five of the respondents

said they have disqualified a

Using Social Media in Decision Making

information

•  Information that was previously

unavailable

•  Voluntarily posted for anyone to see

•  People stand out for the wrong

Off the Job Behavior

•  Representative of the company

•  Right to privacy

What an Employer Can Learn Through Social Media

Profiles

•  Writing style/capability

•  A person's social network or following

•  Interests and hobbies

•  Experience (programming, design)

•  Fit with "firm culture"

•  Judgment (good or bad)

•  Mentions of illegal/unethical activity

However Proceed with Caution

target certain applicants)

•  Cannot consider protected

status

•  FCRA may apply to social

media searches conducted by CRA

•  Should not compel disclosure

Conducting a Lawful Interview

•  Very important for employer and potential

employee.

•  Interviewer's goal: is the applicant suitable

for the job.

•  Interviewers must be aware of what they

can and cannot legally ask.

•  Assuming supervisors know what is

Statutes to Be Aware of When Making Hiring Decisions

•  Equal Pay Act of 1963 (EPA): sex-based wage discrimination;

•  ADEA: applicants over 40

•  Americans with Disabilities Act: disabled applicants

•  Rehabilitation Act of 1973: persons with disability working in the

federal government;

•  Genetic Information Nondiscrimination Act (GINA):

discrimination based on genetic information about an applicant; and

•  Louisiana laws cover all that and more: sickle cell trait, genetic trait,

Checklist

•  Limitations on information: Title VII, applicable state laws, EEOC

guidelines

•  Screening Policies: consistent, narrowly-tailored, supported by

reliable information, “business necessity”

Generally, Employers Can Ask About:

experience in the relevant area.

•  Any other qualifications for the job.

•  Strengths and weaknesses

associated with the tasks required by the job.

Question Areas Specifically Prohibited Include:

•  Children

•  Medical History

•  Religious Affiliations

•  Bank Accounts and Other Personal

Question Areas Specifically Prohibited (cont.)

•  Union or Club Memberships

•  Transportation

•  Arrests

Examples of similar questions that will supply

necessary information, but without the risk

•  This job will require a number of weekend

conferences you will need to attend. Does

overnight or weekend travel present a problem for you?

•  This job requires you to move 45 to 50 pound

boxes from one area to another. Are you able to do that with or without reasonable

accommodation?

•  This job requires fluency in Spanish. Are you

fluent in that language?

•  Are you legally entitled to work in this country?

Remember this simple rule:

Questions