Applicant privacy, when is the right time to get all the info you need?

Screening applicants to find a quality hire can be a difficult process.  Assessing a candidate’s talent, training, skill, and motivation is just the beginning.  A company may also need to take into consideration background, financial status, driving record, and physical limitations.

Much of this information is considered private and protected, so how and when should an employer get the final information they need to make an educated decision prior to a job offer?

The “Ban the Box” provisions

The box refers to the checkbox on many applications that job seekers must check if they have been convicted of, or possibly arrested for, a crime.  States now have a provision, that will be going into effect over the next couple of years, banning the question on applications.  Asking candidates, prior to them needing to be vetted for hiring, about their arrests or convictions is considered a violation of their privacy.  A best practice is to remove the checkbox from applications now, before your company is open to litigation.

Use of criminal background information

The EEOC (Equal Employment Opportunity Committee) has given a number of decisions governing the requesting of, and use of criminal background information.  One of the most important is when backgrounds should be considered.  The EEOC states that criminal history should be requested and evaluated after the interview process, as part of the final review for a job offer.

In order to get the information your company needs to have the job seeker sign a request for information form, just the same as the credit application process.  Background checks fall under the same regulations, Fair Credit Reporting Act, requiring documentation and true intent of use.  In credit reporting this means a person shows intent of purchase, and is not being “pre-qualified”, the same holds for criminal backgrounds.

Once you get authorization and receive a report you have decisions on the use of the information.  The EEOC states that arrests without conviction are not to be considered (they show on a criminal background) as the applicant is deemed innocent without a conviction.  Additionally, any convictions need to be relevant to the position being sought by the job seeker to be used in the hiring process.  An example would be ignoring a 10 year old conviction for trespassing, when vetting a person for a position as a mechanic.  The felony isn’t recent and doesn’t show an inability to perform the job.  This can become very complicated, and the EEOC has opened the door for applicants to bring discrimination suits against companies they feel unfairly use their background.  A best practice is to have a labor attorney draft a set of guidelines for hiring, carefully considering different types of offenses and their relevancy.

The last part of the criminal background process is the pre-averse action notice, and final averse action notice.  The FCRA states that when a report is used to judge the worthiness of a candidate the job seeker has the right to refute the information, or enter clarifying statements.  This means you need to send a notification to the candidate that your company found information on their background report and are using it as part of the vetting process.  Applicants are then given 28 days to respond with information that either corrects, or refutes the criminal information being used in the decision making process.  Once that time is up you send a final averse action notice if you are not hiring the candidate.  Again, have a labor attorney help draft your averse action notices and reasons for not hiring.  You need to protect your company from suit.

Compensation, medical, disability, and drug screening

The ADA (Americans with Disabilities Act) covers issues with physical limitation, and prior compensation.  Pre-employment screening cannot include medical exams, questions about disabilities, or questions about prior compensation.  It is a very common practice to ask job seekers about prior earns, it is even listed on many standard form job applications.  This is a violation of the job seekers privacy, and prohibited.

The only exception to the medical examination rule is drug screening.  A drug test is not considered a medical exam, and the ADA does not give protection to any job seeker that test positive for an illegal substance.  This includes marijuana.  Even in states where recreational marijuana is legal companies have no obligation to hire anyone that fails a drug test, and its use is not protected.

Social media, and Google search

As of the latest government survey (2016), 78% of HR professionals use social media, and online search in the vetting process for candidates.  Their are also companies that compile profiles from data gained from sources like Facebook, Google, and Twitter.  As of now there are limited regulations on this information, though there has been some move to include it in the FCRA.

In 2016 two of the companies that compile social information were heavily fined for violating the FCRA.  The government deemed the reports as a background check, without applicant consent or averse notification.  To protect your company ask your labor attorney to draft a document, similar to the background check authorization, for social media search.  Protect your company from being an example case for privacy.

Conclusion

Making a complete decision on a candidate needs to include criminal background, financial checks, drug screening, and evidence of negative behavior (social media).  It is important to know when and how to get the information you need.  Never search for information without written consent from a candidate (even social media).  Wait to get background information until after the applicant has been through your standard interview process, to demonstrate that you protected their privacy by holding off on gaining information until absolutely necessary.  Use a labor attorney to put together guidelines, and documents that will protect your company.

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