Before I move on to Part 2 of Pre-Hiring Compliance, I want to point out that even the behemoth Facebook is not immune to running into some of the problems I discussed in Part 1. They just released a new system for posting job ads, and will no longer allow employers to screen people by age, gender or ZIP code. Facebook’s changes follow a series of discrimination claims and lawsuits brought by several civil rights organizations and individuals, including claims filed with the EEOC. The targeting system allowed users to exclude “protected classes” from consideration for employment; obviously in violation of federal law.
Now, on to Part 2 of Pre-Hiring Compliance.
Before you can get this information, the Fair Credit Reporting Act (FCRA) requires you to give a conditional job offer the candidate and also have them sign a release to obtain this information. However, even if permitted to get this information under FCRA, many states might prohibit you from getting this information. For example, many states now prohibit you from asking whether an applicant has ever been convicted of a felony (“Ban the Box”); whether they smoke marijuana (especially if used to combat a disability), salary history and the House of Representatives just passed legislation that would ban the use of credit checks in employment hiring altogether.
And even after you get this information, be careful you don’t use it to discriminate against a protected class. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals within a protected class and does not accurately predict who will be a responsible, reliable, or safe employee.
You must keep all personnel or employment records related to hiring for at least one year, even if the person was not hired.
Businesses often want applicants to take tests related to the job duties. These tests, and again the questions that are part of the test, must be wholly relevant to the job duties. You should not be conducting a math test for a person who will handle customer service inquiries. However, it would be okay to test that person’s presentation and conflict resolution skills.
Some companies specialize in preparing these types of tests, but even these outside-prepared tests should be reviewed by your company to make sure they are compliant and to make sure they are actually testing for the skills you need. Importantly, remember that your company will be liable if the tests discriminate.
Another valid reason to conduct employment testing is that an employee may think about the skill differently than you. For instance, a person may believe they know Excel, but you need them to know how to create graphs and pivot tables from the information. There may be a disconnect between what you believe the necessary skills are and the candidate belief of his/her skills.