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Sep 2014
09
September 09, 2014

Employer Hiring Challenges on the Rise


Recent state and federal legislation and regulations have further restricted employers’ ability to screen job candidates.  There are now restrictions on an employer’s use of social media, information discovered during background checks and criminal record checks.

Eighteen states, including six new ones this year – Louisiana, New Hampshire, Oklahoma, Rhode Island, Tennessee and Wisconsin – have barred potential and current employers from requesting or requiring access to employees’ and applicants’ social media accounts.

Michigan’s law, which went into effect in December 2012, mandates that employers must generally limit exploration of applicants’ social media accounts to content that is not privacy protected and is job-related. Additionally, such evaluations may only be conducted after the applicant is interviewed.

Earlier this year, the Equal Employment Opportunity Commission and the Federal Trade Commission issued guidance to employers on best practices for background checks. The Fair Credit Reporting Act, or FCRA, requires employers conducting background checks through a paid third party to follow a series of steps before taking an adverse action against an applicant.  The FTC guidance largely repeated the FCRA requirements.

The EEOC guidance contained a reminder to apply the same standards equally to all applicants and to be especially careful when basing employment decisions “on background problems that may be more common among people of a certain race, color, national origin, sex or religion; among people who have a disability; or people age 40 and over.” 

The EEOC went on to say, “Employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin or another protected characteristic, and does not accurately predict who will be a responsible, reliable or safe employee.”

The use of criminal record checks in the hiring process has also been specifically addressed in multiple court cases and in a 2012 EEOC guidance. The basic factors to determine whether a candidate may be excluded from employment based on a criminal conviction are:
 
  • The nature and gravity of the offense or conduct,
  • The time that has passed since the   offense, conduct and/or completion of the sentence, and;
  • The nature of the job sought.

To lawfully reject a candidate based on a criminal conviction, an employer must demonstrate that rejection is job-related and consistent with business necessity. Additionally, before rejecting an applicant due to a criminal conviction, the EEOC has required that the employer must give the applicant an opportunity to explain why the criminal conviction should not be considered a job- or business-related disqualification.

According to the National Employment Law Project, a so-called “ban the box” movement has resulted in 13 states and approximately 60 local units of government in some way banning job application questions about criminal convictions. The most recent of these, in New Jersey, was signed into law by Governor Chris Christie on Aug. 11.  Michigan does not have such a ban
at this time. 

Although there is a trend, both on the state and federal levels, toward limiting how employers may collect and use information they discover about job applicants, there is still a great deal employers may –  and should – do to determine if a candidate is suitable.  Public portions of social media accounts may be reviewed, but only after the applicant is interviewed and only for legitimate job-related reasons.  Criminal background checks may still be performed, but only for positions in which a conviction is legitimately a disqualifier and only if the candidate is given an opportunity to explain the relevant circumstances.

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