Every employer wants to hire qualified, motivated employees. Yet, the hiring process at many companies tends to be inconsistent and often results in engaging employees that fail to excel, or to even perform within acceptable parameters. Even worse, poor practices in the hiring process can result in costly litigation from discrimination claims, not only from the employees that do get hired and later have to be terminated, but also from applicants that do not receive offers of employment, or even from coworkers who are injured by the newly hired employee.
How can an employer start off on the right foot by improving its hiring process? The goals of an effective hiring process should be to:
I. Recruit Qualified, Motivated Employees
II.Minimize Risks of Litigation from Discrimination Claims.
III. Maintain and Provide a Safe Workplace for All Employees
A comprehensive employment application which elicits appropriate information without asking any illegal questions should be the first step. Employers should be wary of using online, mass produced employment applications. Developing and customizing your own employment application particularly for positions that require significant skill, technological training or business development would be a worthwhile expenditure of resources. Any employment application, job posting or advertisement for employees must state that the employer is an Equal Opportunity Employer. The employment application should also contain an at-will statement (if the employment opportunity is indeed an at will as opposed to a contractual opportunity) and an authorization to verify information.
During the interviewing process, the employer should be careful to avoid asking unlawful questions. Questions like “Are you at least 18 years old?” should be used instead of “How old are you?” Language that suggests a preference based on gender, race, age or any other protected characteristic should also not be used. For example, a restaurant should be looking for a “Server,” not a “Waitress”. Eliminating unlawful questions on applications and postings along with avoiding personal topics like “Are you married?” or “Do you have children?” during interviews, help minimize the risk of a discrimination claim from an unsuccessful applicant.
What about questions concerning an applicant’s criminal record? Employers have an obligation to maintain a safe workplace and risk lawsuits from their own employees, customers, or vendors, who may be assaulted and injured by an employee, based on theories of negligent hiring. Depending on the position and the type of workplace, checking an applicant’s criminal record may be extremely valuable. However, the laws concerning inquiries into an applicant’s criminal record vary dramatically depending on the jurisdiction.
Over the past 20 years, restrictions on public and private sector employers from asking applicants about their criminal records have been passed in 31 states and over 150 cities. These so-called Ban-the-Box laws are intended to avoid discrimination against minorities and to help those who have been convicted of crimes obtain employment.
What can an employer do? On the one hand, every employer wants to protect itself from claims of unlawful discrimination filed by individual applicants or classes of applicants who were not interviewed or hired. On the other hand, a failure to take reasonable precautions against hiring an individual with a record of violence, could subject a company to a significant claim from an employee, vendor, or customer who is injured by that individual.
Even in states that do not have Ban-the-Box laws, some employers are removing any question about criminal convictions from their employment applications and only checking an applicant’s criminal record after making a conditional offer of employment. As of this date, even the most restrictive Ban-the-Box laws, in California, Hawaii, and the District of Columbia, allow an employer to check an applicant’s criminal background after making an offer of employment, conditioned on a satisfactory background check. This is the approach that would be the most likely to reduce the risk of discrimination claims from unsuccessful applicants.
The EEOC takes the position that a blanket prohibition on interviewing or hiring applicants with a criminal conviction constitutes unlawful discrimination. Therefore, even employers hiring employees in jurisdictions without restrictive legislation should always consider whether the position warrants a criminal background check. And, when a criminal record is discovered, determine whether the record is substantively relevant, or even recent enough to be a disqualifier for the applicant. The record of a 30-year old applicant featuring a conviction for possession of marijuana 10 years ago, when she was 20 years old, may not be significant enough to disqualify her from employment today, if she is otherwise qualified.
There is no “one size fits all” solution. Every employer should be aware of these issues and customize its hiring process to fit the positions needed, in the jurisdictions where its employees are based. The members of Dickinson Wright’s Labor and Employment Department can assist each employer in evaluating and modifying its hiring process in order to help it achieve its goals.
This blog post is published by Dickinson Wright PLLC to inform our clients and friends of important developments in the field of employment law. The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright attorney if you have specific questions or concerns relating to any of the topics covered in here.
About the Author:
James B. Perry is a Member in Dickinson Wright’s Detroit office where he assists clients in all areas of labor and employment law. He can be reached at 313-223-3096 or jperry@dickinsonwright.com and you can visit his bio here.
