Significant Laws and Fairness in Hiring
The past of the people you hire is the future of your company
Hiring represents a process critical to the survival of businesses.
With this in mind, we have put together some basics to increase your awareness of a few of the critical areas in the employment process.
*NOTE: This information is not intended to replace competent professional or legal advice. In addition to federal and state laws, the nature of your business may determine that other situations should be addressed. We strongly recommend professional advice in all areas of employment.
Basic Elements of Hiring
Keep in mind the days of "the less written, the better" may be over. They ended with federal and state legislation addressing the hiring process.
Many states have laws in effect that are stricter than the ADA and FCRA.
1. Policies
The nature of your business determines which situations need to be addressed. If you have any company vehicles, a Driver Responsibility acknowledgment form should be used.
Other policies to consider:
Employment of individuals with criminal convictions;
Medical review policy;
Drug policy;
Termination procedures;
Financial responsibility as a function of employment;
Access to references from previous employers; etc.
If you have knowledge regarding an employee that you believe precludes further employment, you may not be able to legally proceed unless you have a policy addressing the matter of concern. See your legal or professional human resources consultant.
2. Application Form
The law requires that all questions be job-related. A good test is to review your existing form with that in mind. With few exceptions, medical and injury inquiries, job-related or not, are illegal (according to the ADA) until an offer of a job has been made. NOTE: Some states may have laws stricter than the ADA. Please consult with an attorney or human resources professional if you are unsure of your compliance requirements
3. Detailed Job Description
Describe the job in basic terms.
List the essential functions of the job in as much detail as possible. Phrases such as "Must lift 35# pallets 50 to 100 times each day" are most helpful for your physician when a medical examination is part of your hiring process.
The job description needs to be in the hands of your applicant before being given an application form.
4. Interviewer Guidelines
All those doing the hiring and interviewing in your company need to have written guidance and a checklist.
This helps standardize the process while serving as a vehicle for describing what you want covered with an applicant.
5. Verification Process
Signing up for DEALERS INSURANCE SERVICES Employment Screening services helps satisfy this element of good hiring.
However, information we provide may prove useless unless you have the previous four elements in place.
Eight things an employer can do that cost nothing
As an employer, there are a number of things that you can do now to protect you and your company from hiring a criminal.
(1a) Place prominent signs around your company that state you conduct background checks and drug testing. Having a sign up is very similar to the security alarm sign you might have at your home or office that deters unlawful individuals from entering.
Promoting the fact that you thoroughly pre-screen new hires is a great way to deter unwanted individuals from applying for employment.
Many individuals (not all) with criminal convictions and falsified resumes will not waste your time because they know that they will be screened out in the hiring process.
This also helps your employees and the public will also feel safe when they are on company premises.
(2b) Place a notice on your web site that you perform thorough background checks and drug testing.
Just as a sign on company premises will deter unwanted individuals from applying for a job, so too will a notice on your website.
Clients who have placed such a link on their web sites describing the various background checks they will be subject to have found it a very useful way to discourage undesirable applicants from applying.
This also indicates to all applicants who visit your web site for employment information that you promote a safe working environment, which is an excellent employee benefit!
(3c) Create disclosure and authorization forms requiring authorization for a background check and drug test.
Hand it to every applicant with the employment application not after they have completed the application.
Create thorough documents that encompass all federal and state laws.
If the applicant has something to hide, your disclosures will make unwanted applicants think twice about completing the application process.
(4d) Advise all employees that your company performs background checks and obtain their authorization in advance.
Write a background screening policy and distribute it to all employees.
In your policy list the required searches for each job position inferring that promotions are based on the satisfactory response from a background check.
It is important that employees know that you conduct background checks and may perform post-hire searches.
(5e) Insist that your temporary employment agency perform background checks and get a copy of the background screening report prior to employing any temp.
It is very common for applicants with criminal records to work through temporary agencies since many agencies do not conduct background checks.
It is important that you protect your company by having the agency screen the candidates they send you so you can have piece of mind.
(6f) Require every vendor and independent contractors who come on to your premises to first background check their employee.
This requirement costs you nothing and protects your employees, customers, and the public.
Create a policy indicating what they should check.
Insist that your vendor sign off that each background check was completed and reviewed before they sent the person to your location.
(7g) Have a complete employment application that asks all the questions you can legally ask.
Have a large notice at the top of your application that you perform background checks and drug testing.
(8h) Just as businesses that are not a drug free workplace can become a drug-filled workplace, companies that do not screen applicants for criminal records can be come a crime filled workplace.
Just like drug testing, word also gets around that you perform thorough background checks on all applicants.
Use your application form as a deterrent reminding everyone that they will have a background check.
The federal Equal Employment Opportunities Commission (EEOC) has listed several questions which can be legally asked prior to making an offer of employment.
Employers should include all those relevant on their application.
Be Sure That You Use a background check supplier that makes every effort to comply with the FCRA.
To protect yourself, you must perform background checks on prospective employees. However, it is easy to slip up when complying with the amended FCRA requirements.
Your background check supplier should have procedures that indicate a knowledge of their responsibilities under the law, and be familiar with resources such as Seay Management Consultants that are familiar with employment law and will help you comply with the legal complexities of human resources management.
It is important to avoid background check companies that want to sell you stored data from databases that they have compiled or purchased.
While information from databases can be cheaply obtained, due to its inherent unreliability it is simply not legal in accordance with the Federal Trade commission.
The FCRA opinion letter of 5/5/99 says that "an employment screening service that uses 'stored data' does NOT comply with Section 613 Subsection (2)". See the FCRA LETTER.
The few dollars saved will seem a poor investment if your use of such information is challenged in a courtroom.
Your background check company should require you to certify that your purpose for requesting consumer reports is a "Permissible Purpose" such as employment screening.
Your background check supplier should have procedures that help make sure that you have given a FCRA compliant Disclosure to each consumer (candidate) on whom a report is to be requested.
Likewise, your background check supplier should have procedures that require you to have a proper release that authorizes you to request consumer reports on job applicants.
They should have procedures that help make sure that your reports will only be used for the intended purposes.
Your supplier must promptly comply with requests for reports in response to any Adverse Action letters you may send.
Finally, since employment related issues represent some of the greatest financial liability exposures a Dealership or any other business may face, the prudent business owner will have thorough and regular reviews of all employment related forms and hiring / termination procedures by qualified professional management consultants.