Employers can be very selective in their hiring these days. They exercise this selectivity by screening applicants with reference checks, background checks, medical examinations, and drug tests, among other inquiries. By using these techniques employers hope to find the best long-term fit for an available job.
Reference checks are necessary, but they usually are not sufficient. References provided by applicants typically are not objective. Also, despite protections provided by state law, former employers are hesitant to provide information about former employees. While employers should still check references, many now also use more comprehensive techniques to evaluate applicants.
Employers can retain third-parties to conduct background checks on applicants. Under the federal Fair Credit Reporting Act (“FCRA”), reports obtained to establish eligibility for employment and containing information about an individual’s credit standing, credit capacity, character, reputation, personal characteristics, or lifestyle are considered “consumer reports”. If an employer pays a third-party, known as a consumer reporting agency, to conduct background checks, such as credit checks or criminal background checks, it is subject to the FCRA.
To comply with the FCRA, the employer must notify the applicant in writing that a consumer report will be obtained and get the applicant’s written authorization before acquiring the report. Before taking an adverse action (such as refusing to hire the applicant) based on the information in the report, the employer must provide the applicant with a copy of the report and a notice of the applicant’s rights under the FCRA. Finally, if the employer actually takes the adverse action based on the content of the report, it must provide additional notice and information to the applicant, including information on how to dispute the contents of the report.
Employers also frequently request information about an applicant’s criminal history. In Virginia, an employer may require an applicant to disclose information about arrests and convictions that have not been expunged. Notably, a criminal background check is a FCRA “consumer report” if the information is obtained from a consumer reporting agency. Under the FCRA, consumer reporting agencies may not provide information regarding arrests that are more than seven years old. Alternatively, the employer can ask the applicant to authorize the release of criminal records from the Virginia State Police.
An employer must be careful how it uses criminal history information. In recent enforcement guidelines, the Equal Employment Opportunity Commission reiterated its concern that the use of criminal history information discriminates against minorities. According to the EEOC a blanket policy against hiring applicants with arrest or conviction records is discriminatory. Therefore, the EEOC encourages an individualized assessment of whether a criminal conduct exclusion is job related and consistent with a business necessity, given the job at issue, the applicant and the applicant’s criminal history.
Often employers also want to confirm that an applicant can perform the essential functions of a job. Under the Americans with Disabilities Act (“ADA”), employers may ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer. Before a conditional job offer, an employer can only ask questions about or test the applicant’s ability to perform the essential functions of the job. For example, an employer may state the physical requirements of a job, such as a lifting requirement, and ask the applicant if he or she can satisfy this requirement. The employer also can test the applicant’s ability to perform the job function with a lifting test. If an employer questions or tests any applicant for a particular job, then it must ask the same questions and use the same tests for all applicants for the job.
Once a conditional job offer is made, the employer may ask disability-related questions and require medical examinations. If the questions or examinations screen out an individual because of a disability, the employer must demonstrate that the reason for revoking the conditional job offer is “job related and consistent with business necessity.”
Drug testing is not a medical examination under the ADA, so a test for current usage of illegal narcotics can be conducted by an employer at any time during the hiring process. If conducted before a conditional offer of employment, the test must be limited to elicit only information regarding illegal drug use. It cannot elicit information on legal drug use.
These techniques allow an employer to explore an applicant’s background. However, they cannot replace the personal interview, which should remain a key part of the hiring process. Not only does an interview provide insight into an applicant that cannot be gleaned from a background check, it also affords the applicant an opportunity to clarify or correct any information turned up in the background check.
Jeremy Carroll is an attorney with Glenn Feldmann Darby & Goodlatte – visit www.gfdg.com to learn more.
