What You Need To Know Before You Hire An Employee – Part 2

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.

After The Interview

Once the interview is completed, and the company believes they have a strong candidate, they will usually want to get more background information. This information often includes:

  •  A criminal background or credit check. If the hiring decisions will be based on this, you must let the candidate know ahead of time and they must sign a separate document allowing you to obtain this information;
  •  Employment history;
  •  Academic history;
  •  Reviewing any police record; and
  •  Driving record (if driving is part of the job description and required for the job)

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.

If you do not hire a person because of information found in a report governed by FCRA, you must tell the applicant:

  •  that he or she was rejected because of information in the report;
  •  the name, address, and phone number of the company that sold the report;
  •  that the company selling the report didn’t make the hiring decision, and can’t give specific reasons for it; and
  •  that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional   free report from the reporting company within 60 days.

You must keep all personnel or employment records related to hiring for at least one year, even if the person was not hired.

Skill Testing

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.


  •  Federal and state laws limit the information you can collect until after you have given a candidate a conditional job offer.
  •  Each state has its own set of unique laws permitting or prohibiting you from collecting certain information in the hiring process.
  •  Skill Testing must be relevant to the job duties.
  •  Review the issues in Part 1 of this post.