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 pcancienne@bakerdonelson.com April 7, 2014

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 Process

Hiring Practice Issues

•  Key to the success of your business

•  Employment related litigation

•  Exposure

Use an Application Form—Not Just Resumes

•  Resumes can be misleading

•  Watch out for spin

•  Applications ensure uniformity and collection of necessary information

•  Signed representations on applications are essential

Application Language is Essential

•  Seek only information that is job-related

•  No promise of employment

•  At-Will statement – in BOLD print

•  Signed consent to background check

•  Equal opportunity statement

•  Drug-free workplace

CAREFULLY Review the Application

•  Failure to sign application

•  Failure to sign background consent form

•  Blank portions

•  Self-reporting

•  Failure to adequately explain departures

•  Failure to adequately explain gaps

•  Cross-outs or changes

Consent for Background Check

•  FCRA Compliance

•  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 hiring concerns

Negligent Hiring and Retention

•  Employers want to do "due diligence" •  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 negligent hiring/retention cases.

Criminal Background Checks

•  State law requires criminal 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.

But, what about the EEOC? But, what about the EEOC?

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 based on criminal records are greatly disfavored

EEOC Guidance on Arrest and Conviction Records

•  Do not assume an arrest = guilt

•  For arrests and convictions, employer should consider: §  nature of the job, §  nature and seriousness of the offense, and §  length of time since the offense was committed.

Criminal History Screening – Best Practices

•  Consistently apply set standards

•  Policies must be supported by “business necessity.”

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, 2013) (suit dismissed in favor of employer, finding no evidence credit checks disproportionately excluded black applicants).

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

disclosed

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 CRA to conduct background checks

Employer FRCA Obligations

•  Signed authorization from applicant

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

•  Must certify to CRA that report will be used for permissible and legal purposes only

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;

3. Provide post-adverse action notice.

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

nothing else

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

Your Rights Under the FCRA” form

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 of report from CRA upon request within 60 days

Social Media: Is Anyone Watching?

•  Half of HR professionals run 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 candidate for information uncovered.

Using Social Media in Decision Making

•  Cheap and easy way to obtain information

•  Information that was previously unavailable

•  Voluntarily posted for anyone to see

•  People stand out for the wrong reasons

Off the Job Behavior

•  Representative of the company

•  Right to privacy

•  At-Will employee doctrine

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

•  Threats, propensity towards violence

However Proceed with Caution

•  Must be consistent (do not target certain applicants)

•  Cannot consider protected status

•  FCRA may apply to social media searches conducted by CRA

•  Should not compel disclosure of social media passwords

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

appropriate is a potentially costly mistake.

Statutes to Be Aware of When Making Hiring Decisions

•  Title VII: race, color, religion, sex, or national origin of applicant;

•  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, political activities, smoking, union membership, etc….

Checklist

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

•  Screening Policies: consistent, narrowly-tailored, supported by reliable information, “business necessity”

•  Risk of negligent hiring: diligent investigation

Generally, Employers Can Ask About:

•  Applicant's knowledge and experience in the relevant area.

•  Any other qualifications for the job. •  Strengths and weaknesses

associated with the tasks required by the job.

•  Ability to work with others.

Question Areas Specifically Prohibited Include:

•  Marital Status •  Children •  Medical History •  Religious Affiliations •  Bank Accounts and Other Personal Financial Information

Question Areas Specifically Prohibited (cont.)

•  Union or Club Memberships •  Transportation •  Arrests •  National Origin

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? (This question is also legally required.)

Remember this simple rule: If a question is not truly job-related, do not ask it.

Questions