NARI Leadership Summit: Make sure your hiring process is legal, part 2

At the NARI Fall Leadership Summit 2013, Barnes & Thornburg attorney John F. Kuenstler of Chicago offered detailed insights into what makes a legally sound hiring process.

During his presentation, “Hiring on My Mind,” Kuenstler provided recommendations on common assessment devices such as reference checks, background checks and credit checks.

When Kuenstler brought up the question of reference checks, there were several chuckles throughout the room.

“You already know you’re not going to get much information, don’t you?” he said. “You’re right. But they are still worth doing.”

Acceptable areas of questioning include employment dates, wage history, attendance history, quality of work performance and discipline history. You also may ask about the circumstances under which the individual left employment and their eligibility for rehire in the future.

Do not ask about workers-compensation history, union activity, disability or any legal claims made against the company. You also are not permitted to ask about absences for reasons authorized by law such as Family and Medical Leave Act (FMLA). Kuenstler also cautioned that asking about the former employee’s genetic information would violate the Genetic Information Nondiscrimination Act (GINA).

Kuenstler covered pre-employment background checks and the Equal Employment Opportunity Commission’s new guidance, issued April 25, 2012, in detail. The Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions permits the limited use of criminal background checks for employment.

The new Guidance was needed given the increasing number of people having contact with the criminal justice system and the fact that Hispanics and African-Americans are arrested and incarcerated at a high rate. According to Kuenstler, in 1991, only 1.8 percent of adults served time in prison. By 2001, that number had risen to 2.1 percent or 1 in 37 adults. By 2007, 3.2 percent, or 1 in 31 adults, served time or were on probation or parole. Social scientists anticipate that 6.6 percent of children born in 2001 will serve time.

Kuenstler also emphasized that the EEOC is mindful that arrests are not proof of criminal conduct. Therefore, employers should not consider arrest records when making employment decisions. The EEOC takes the position that using arrest records in this way is not consistent with business necessity. Also, employers must not exclude applicants, deny promotions and/or make termination decisions based solely on arrest records.

He also wanted to verify that NARI members understand that they should avoid using any so-called bright-line rules.

“A bright-line test is a clear, simple and objective standard that can be applied to judge a situation,” he said. “When related to the use of criminal history information, they are generally unlawful in an employment context. An example would be automatically excluding any applicant with an arrest or automatically excluding any applicant with a conviction of any nature.”

The question the EEOC and the court will consider is whether the employer’s elimination of the job applicant for alleged criminal conduct is job-related and consistent with business necessity, Kuenstler said. The EEOC recommends not asking about convictions on job applications at all.

Employers should eliminate blanket policies or practices that exclude people based on any criminal record. They should also develop a narrowly tailored policy that lists specific offenses that would demonstrate that an applicant is unfit for performing the requirements of a job. The policy should also determine how long a job applicant could be excluded from consideration for that position based on evidence, and it should allow for individualized assessment.

Kuenstler then tackled the issue of employers using credit reports to screen job applicants. The Fair Credit Reporting act (FCRA) says that employers must follow certain guidelines. Specifically, they must inform the job applicant or employee prior to requesting the report and obtain a signed authorization. The employer must also certify that the organization has complied and will comply with FCRA. Employers must send a “pre-adverse action notice” if they are not hiring an applicant and have requested the applicant’s credit report. Employers must follow up with an “adverse action notice” later, explaining their employment decision.

In terms of social media, Kuenstler called it a double-edged sword.

“It’s useful in that you can find deal-breaker content before you hire someone,” he said. “The downside is that you could learn information that you normally go out of your way to avoid knowing, like race, age or disability.”

If you are going to screen job applicants with social media, Kuenstler suggested you do so consistently and maintain a list of where you will look. In other words, check Facebook and Twitter for all applicants, not just a select few. If possible, have a lower-level staffer do the actual site review and do not permit them to report any protected information about race, disability, etc. they find to the employment decision-maker. Do not “friend” an applicant to gain access to his or her protected information. State laws are coming online to prevent employers from requiring applicants to provide social media passwords. Both Illinois and Maryland passed such laws in 2012.

Throughout the presentation, Kuenstler’s commentary inspired so many questions from NARI members tit became clear that some members mistakenly believe they should be able to treat job applicants as potential clients treat them—asking many probing questions and then not hiring them—Darcy Lewis

To download the slides from this presentation, click here.

Click here to read Part 1, on the interviewing process.