Carrie B. Rosen, member of the labor and employment practice group at Cozen O’Connor and contributor to InsideCounsel.com wrote a two-part series highlighting current hot topics in pre-employment screening.
Besides the fact that we feel pretty amazing to be part of an industry that has just been mentioned alongside the word “hot,” we also found that Rosen did a great job of highlighting some key issues that the EEOC has taken a keen interest in of late. (If you’ve been reading our blog you’ll recognize these topics.)
#1: Criminal Records for Employment Screening
Despite the lack of federal law to restrict or prohibit the use of criminal records, the EEOC has renewed its focus on employers’ use of conviction records in employment decisions. This renewed attention makes the use of criminal records a big topic of interest in employment screening world.
The EEOC is considering revising its current guidelines and policies around criminal records because, despite the fact that individuals with criminal records are not a protected class under Title VII, it is believed that blanket policies excluding individuals from employment on the basis of their arrest and conviction records disproportionately affect minorities.
Read our latest blog post on this issue: EEOC Examines Arrest and Conviction Records as a Hiring Barrier
#2: Employment Credit Checks
Recently enacted laws have brought credit checks to the forefront as a hot topic. Already, as of August 2011, six states have enacted laws to prohibit or limit the use of credit information for employment purposes and seventeen others are considering such legislation. Most of these laws do or would provide exceptions if the information is substantially related to the job position or if otherwise required by law. There is also a federal bill pending that would amend the Fair Credit Reporting Act and restrict companies from using credit checks for employment purposes with limited exceptions, including certain positions with financial organizations, government agencies or ones requiring national security clearance.
Once again, the EEOC’s takes the position that credit checks should be job-related and consistent with business necessity. Read our recent blog post on this issue: Background Credit Check Under Fire
#3: Online Applicant Investigations
As more and more employers use the internet and social media sites to examine potential or existing employees, many are likely to discover not only an applicant’s educational and professional background, but also information related to race, religion, age, sexual orientation, national origin, political affiliation, disability status or medical information. The trouble is, regardless of whether an employer actually meant to find this information, it’s hard to prove that the information wasn’t used in the employment decision process. This predicament is exactly what has landed online applicant investigations and social media background checks in the spotlight.
Read our recent blog post on this issue: A Social Media Search by Any Other Name… Is Still a Background Check
#4: Current Employment Status Inquiries
The final inductee to the “hot topic” list is the issue of unemployed workers. Specifically, the issue of employers who inquire about current employment status when making employment decisions. While there is no federal law to prohibit employers from asking about an applicant’s employment status, reports of job advertisements specifically precluding unemployed people from applying or rejecting those who are unemployed has brought this issue to the attention of the EEOC.
Read our recent blog post on this issue: How Does Your Organization Handle Unemployed Workers?
What’s an employer to do?
These hot topics can certainly leave one feeling cold about the idea of pre-employment screening. Yet, we know that screening is an important part of managing your employee-related risks. So, what should you do? How can you run an effective screening program that also protects you from the dangers of doing it wrong? We’d suggest, first and foremost, that you solicit the advice of a labor and employment attorney. Alongside that, we suggest you never go it alone. A reputable and experienced background screening company can help guide you through the compliance side of employment screening and help you avoid the pitfalls that come when you learn-by-doing.
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