Probably the most time-consuming yet significant task any organization will undertake is hiring. This even gets more encumbered by the variety of legal implications that come into play upon hiring employees. The amount of various laws and policies an employer will have to take into consideration when formulating hiring practices that meet minimum thresholds for being legal is simply astounding. These minimum thresholds, if not met, can lead to lawsuits, fines, and other negative ramifications against the company brand.
Throughout this article, we will talk about three of the most important aspects of legal compliance in the employee hiring process: background checks, drug testing, and interview questions. Knowing how to approach these areas within the legal boundaries is going to be important in protecting both the employer and the potential employee.
Background Checks
Checks of this nature are a common practice on the part of employers to verify a candidate’s qualifications, work experience, and criminal background. Such a check may, however, be carried out only in conformity with federal and state legislations. One of the major legislations that regulate how an employer may obtain and use information on background checks is the Fair Credit Reporting Act.
For example, under FCRA, any employer has to get a written consent form from an applicant before requesting any type of report. If there is adverse action against the applicant based on information in said report-which includes failing to extend the offer of employment, for example-then a copy of the report and a summary of FCRA rights have to be provided to the applicant. This allows the applicant to contest any inaccuracies.
Offenses
Employers also must be aware of several different state statutes regarding background checks. Most states have passed “ban the box” statutes, which simply prevent an employer from asking about the applicant’s prior criminal history on the initial application for employment. The whole philosophy behind these sorts of statutes is to afford the individual with a criminal background the opportunity to be hired and to simply move questions about their backgrounds further down in the hiring process. Knowledge of these, and their practice, helps employers avoid discrimination claims.
Drug Testing
Another highly relevant legal issue in hiring concerns drug testing for most jobs that involve safety-sensitive duties. Employers can drug test to ensure an environment that is safe, drug-free, and thereby productive. However, this practice must be non-discriminatory and not applied arbitrarily to selected candidates or employees.
Legality of drug testing varies from state to state. While some states have specific regulations regarding at what time and under what circumstances it shall be allowed to conduct drug testing, other states leave that completely in the hands of employers and at their discretion when developing their own policies. Employers are well-advised to take note how those changes will impact any business’s drug-testing policy as more states legalize marijuana in one capacity or another. While there are increasing numbers of states allowing marijuana use medically or recreationally, employers may generally still require a drug-free workplace and implement policies banning marijuana use at least in safety-sensitive positions.
Consult a Lawyer
One of the most effective ways to ensure legal compliance in the hiring process is to consult with an employment lawyer. Employment lawyers specialize in understanding the complex web of local, state, and federal employment laws, which can vary significantly depending on your jurisdiction. They can help employers design legally sound hiring practices, draft compliant policies for background checks, drug testing, and interview questions, and ensure that these processes align with current legislation.
For example, an employment lawyer can advise on whether certain interview questions may lead to discrimination claims or whether your background check procedures are compliant with the Fair Credit Reporting Act (FCRA). Additionally, they can offer guidance on evolving legal areas, such as state laws concerning marijuana use and drug testing policies, or the requirements for reasonable accommodations under the Americans with Disabilities Act (ADA).
Application Questions
The interviewing stage of the recruitment process is crucial, but it also is one of the areas in which employers can most easily fall foul of inadvertently breaking employment law. Federal laws, such as the Civil Rights Act of 1964 and the ADA make illegal hiring decisions based upon race, gender, age, religion, national origin, disability, and other individual traits and characteristics. As a result, employers must be highly sensitive to the type of questions they ask in an interview.
These questions should range from a candidate’s qualifications, his skill levels to his job performance ability. Questions on personal characteristics not related to the performance of the job should be out of bounds. For instance, questions of one’s marital status, children, or future family plans can present one with discrimination claims. Similarly, questions about a person’s age, religion, or any disability should not be asked unless such information can be expressed about the requirements of the job.
Employers also must be aware of the ADA, which prohibits requests for medical history or even an applicant’s disability, except in those areas in which an employer needs to know whether an applicant is capable of performing the essential functions of a job, with or without reasonable accommodation. An employer can inquire in those instances whether the applicant can perform the job’s essential functions, with or without accommodation.
Conclusion
One sure way of avoiding legal risks and ensuring equity in hiring is keeping hiring practices lawful. Indeed, in three important areas an employer must be most conscious: background checks, drug testing, and interview questions. The best protection of possible lawsuits an employer can consider, as it builds a diverse and qualified staff, is to know your legislation and make it a point to follow such laws. Such laws include the FCRA, state-specific laws on drug testing, and federal laws on discrimination. Your company also needs to have a clearly stated policy and training for hiring managers on the legal way to conduct hiring. This helps your organization stay in compliance with the law and provides a nondiscriminatory, equal opportunity method of hiring.
