The Hiring Process: Best Practices and Common Pitfalls

Employee Recruitment

Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.  Employers must be mindful of recruiting and hiring with Equal Employment Opportunity principles in mind and must implement practices that ensure recruitment and hiring decisions are not based on an employee’s protected status.  Applications should be screened consistently – the same standards should be applied to everyone applying for the same position.  Employers should also be mindful of the possible need to accommodate applicants who need assistance because of their medical condition or religious beliefs.  For example, you may need to help a person with carpal tunnel syndrome fill out an application, or you may need to reschedule an interview originally scheduled for a religious holiday if the applicant’s religious beliefs prevent her from working on that day.

 The Fair Credit Reporting Act and Background Checks

Employers often use background checks when screening a potential applicant for employment. In doing so, whether internally or through a third party, employers must ensure that they are following the procedural requirements set forth by the Fair Credit and Reporting Act (“FCRA”).  More specifically, employers must notify job applicants, in a written document separate from other employment or application materials, that it may use the information obtained during the background check to make decisions about hiring.  Additionally, employers must obtain the applicant’s permission, in writing, to conduct the background check.  The employee’s authorization may be part of the document notifying the employee that the employer intends on conducting a background check.

Additionally, before taking adverse employment action based upon the background check, an employer is required to provide the applicant with a summary of their rights under the FCRA with respect to those consumer reports obtained by the employer, including the right to dispute anything on the credit report that the employee believes to be incorrect and the credit reporting agency is obligated to investigate those concerns.

Criminal Background Checks

Criminal history inquiries remain an important tool for employers.  They are a necessary and vital means by which employers may protect themselves against various forms of liability, including negligent hiring claims.  New Jersey has legislation specifically regulating an employer’s ability to inquire into an applicant’s criminal history.  This legislation known as “The Opportunity to Compete Act” or “Ban the Box” prohibits employers from asking criminal conviction questions on initial employment applications.  Under this law, employers are also prohibited from making statements that they will not consider applicants who have been arrested or convicted of crimes when advertising for the position.

While employers are prohibited from inquiring into a prospective employee’s criminal history during the initial application process, that process ends when an employer has conducted the first interview.  Additionally, the law does not prohibit an applicant from voluntarily disclosing information about his or her criminal record during the initial application stage.  Moreover, employers are not prohibited from refusing to hire an applicant based on his or her criminal record, unless the record has expunged or erased, provided the refusal is consistent with any other applicable laws.  Therefore, in order to avoid liability under the Act, employers should make sure to remove any questions seeking information regarding an applicant’s criminal history on a job application and should train internal recruitment personnel to avoid inquiring into an applicant’s criminal history until after they have conducted the initial interview.

It is important to note that the Equal Employment Opportunity Commission (“EEOC”) distinguishes between an arrest and conviction when considering an employee’s criminal history.  According to the EEOC, an arrest does not establish that criminal conduct has occurred, as many arrests do not result in criminal charges, or the charges are dismissed.  Moreover, many arrest records may not report the final disposition of the arrest (e.g., not prosecuted, convicted, or acquitted).  Therefore, the EEOC urges employers not to rely upon arrest records when reviewing an applicant or employee’s criminal history.  When reviewing convictions, the EEOC recommends employers conduct a targeted individualized assessment, which takes into account the nature of the crime, the time elapsed since the crime was committed, and the nature of the job to determine whether excluding that individual from the position is job related and consistent with business necessity.  While employers are not bound by the EEOC guidance, it would be prudent to take these recommendations into consideration when making employment decisions.

Employment Tests/Selection Procedures

Employers often use tests and other selection procedures to screen applicants for hire, including cognitive tests, agility tests, personality tests, and medical examinations.  In doing so, however, employers need to be mindful not to use any test in order to intentionally discriminate based on an individual’s protected status.  This form of discrimination is called “disparate treatment.”

Use of these tests can also run afoul of Title VII if they disproportionately exclude people in a particular group by race, sex, or another covered basis.  This form of discrimination is called “disparate impact” and involves a neutral test that adversely effects persons of a protected class.  For example, tests that require employees to live within a certain geographic region may have an especially negative effect on applicants of a certain race.  If the selection procedure has a disparate impact based on the applicant’s protected status, the employer must then demonstrate that the selection procedure is job-related and consistent with business necessity.  If the employer meets this standard, the burden then turns to the applicant challenging the selection procedure to demonstrate that there is a less discriminatory alternative available.  In other words, the applicant must show that there is another test available that would be equally effective in predicting job performance but would not disproportionately exclude the protected group.

Employers must also be mindful of common mistakes that might be challenged under the Americans with Disabilities Act. Title I of the ADA prohibits private employers from discriminating against qualified individuals with disabilities on the basis of their disabilities.   Under the ADA, an employer may not ask questions about disability or require medical examinations until after it makes a conditional job offer to the applicant. After making a job offer (but before the person starts working), an employer may ask disability-related questions and conduct medical examinations as long as it does so for all individuals entering the same job category. The ADA also makes it unlawful to use employment tests that screen out or tend to screen out an individual with a disability unless the test, as used by the employer, is shown to be job-related and consistent with business necessity.

When it comes to the Age Discrimination in Employment Act, the ADEA prohibits discrimination based on age (40 and over) with respect to any term, condition, or privilege of employment.  Under the ADEA, covered employers may not select individuals for hiring in a way that unlawfully discriminates on the basis of age.  The ADEA prohibits disparate treatment discrimination, i.e., intentional discrimination based on age.  For example, the ADEA forbids an employer from giving a physical agility test only to applicants over age 50, based on a belief that they are less physically able to perform a particular job, while not testing younger applicants.  The ADEA also prohibits employers from using neutral tests or selection procedures that have a discriminatory impact on persons based on age (40 or older), unless the challenged employment action is based on a reasonable factor other than age.  Thus, if a test or other selection procedure has a disparate impact based on age, the employer must show that the test chosen was a reasonable one and job related.

Social Media

Finally, it is critical to address the role social media plays during the hiring process, as employers commonly utilize social media to gather information about prospective employees.  Although social media can be very useful for this purpose, the law on what is permissible use by an employer is underdeveloped.  Federal, state and local anti-discrimination laws prohibit discrimination in hiring based on a prospective employee’s protected class.  Additionally, many states have enacted laws prohibiting discrimination based on an employee’s lawful, off-duty conduct.  Employers using social media in hiring risk incurring legal and financial liability if a prospective employee can demonstrate that his or her candidacy was negatively affected by information obtained from social media.  For example, viewing a prospective employee’s social media during the hiring process can reveal information about protected class status or off-duty conduct that can later become the basis for a discrimination claim.  Additionally, using targeted social media advertising to post an open position may create an appearance of discrimination against non-targeted groups.  Moreover, making hiring decisions based on the lack of a social media presence may implicate age discrimination.  Lastly, employers should be aware that several states, including New Jersey, have passed laws prohibiting employers from requesting password and username information or otherwise accessing the password-protected portions of a prospective employee’s personal social media accounts.  If employers are interested in searching social media for information about prospective employees, they should confine their search to information that is publicly available.

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