It’s a fair guess that employment lawyers spend a substantial amount of their time advising clients about the legal issues arising out of employment separations. However, these attorneys likely receive far fewer requests for legal advice about the hiring process. Job postings, employment applications, interviews, and background screen processes often do not get the attention they truly need.
With states and cities increasingly entering into an area of law where there already exists heavy federal regulations, hiring compliance is becoming increasingly more complex. For employers operating across state lines, the complexity is even more palpable.
For example, increasingly more states and cities are requiring that employers “ban the box,” which prohibits employers from seeking information about an applicant’s criminal charges or convictions. Twenty-five states and many other cities and counties now have passed ban the box legislation. More recently, individual cities have joined some states in looking at whether or not employers can ask about credit history. Philadelphia is one such city that passed legislation in 2016 limiting employers’ access to an applicant’s credit history during the hiring process.
The degree of regulation imposed on employers is also triggered by the level of screening that is done by an employer or its outside background checker. The Federal Fair Credit Reporting Act regulates how background checks must be conducted and, in some cases, commands employers to give a job applicant an opportunity to correct potential screening mistakes before a final hiring decision is made. Employers need to understand the difference between a “consumer report” and an “investigative consumer report” and the procedures that must be followed with regard to each.
Knowing how to properly screen an applicant and what tools can and cannot be used is critical to legal compliance. One option for all employers is to utilize a screening provider. The National Association of Professional Background Screeners (NAPBS), serves as a source for employers on screening tactics and compliance. Even with a background check in hand, understanding how to use this information in the hiring process can prevent inviting a charge of discrimination from the Equal Employment Opportunity Commission, which requires employers to make individualized assessments of candidates in certain situations. Legal consultation on these issues can be both good risk management and financially beneficial for employers.
