NACE Journal, November 2019

Employers and applicants generally have a similar goal in mind when it comes to the hiring process: Find the best fit for a job. The employer wants to find a candidate who has the best ability to perform the essential functions of the job, while also being someone who “fits in” to the culture of an organization. The applicant is searching for a job that satisfies his or her personal goals, whether those relate to compensation, geographic location, potential opportunities for growth, or a combination of those factors. Either way, both parties are looking for something that “fits” the goals they have established.

Finding the perfect “fit,” however, is easier said than done. Applicants must wade through opportunities that are better on paper than in real life, and the same goes for employers. To find the “perfect” applicant, employers use multiple avenues to screen out potential applicants. These avenues include crafting the written application, perfecting the interview process, and determining which background screening methods to use. Each avenue contains multiple potential potholes an employer may hit to derail its hiring process and lead to potential legal liability.

The Application

The potential pitfalls employers face in the hiring process start even before an applicant interviews. The employer must be mindful that the application the organization uses to initially screen out potential applicants is in compliance with local, state, and federal laws. Most employers are aware that there are certain questions that should not be asked on an application, such as those related to the candidate’s race, religion, or disability, but some are less aware of other types of questions that violate the law or could lead to information that violates the law. For example, the job seeker should not be asked to disclose the date of his or her high school graduation, which would give the employer information to determine the applicant’s age. Similarly, applications should not include questions about illnesses or injuries that might impact the applicant’s ability to do the job; instead, the employer can ask if the applicant can perform the essential functions of the job.

“Ban the box” laws

Employers must be mindful of local, state, and federal laws that limit an employer’s ability to ask a question related to an applicant’s criminal background. As a general matter, a criminal history can only be used to exclude a candidate if it resulted in a conviction and is an offense that would essentially preclude an individual from performing the job for which he or she has applied. For example, if an applicant has a retail theft conviction from 20 years ago, that generally should not preclude that person from being hired as an office manager today. Conversely, if an applicant has five drunk driving convictions over the past five years, an employer may not want to hire that individual as a driver.

Recently, states and local governments have taken an additional step of implementing what has been referred to as “ban the box” laws; employers in states that have “banned the box” are essentially prohibited from requesting an applicant’s criminal history on an employment application and cannot make such inquiries until after the interview process. There are some exceptions to the rules, i.e., if an employer is required to conduct a background check due to legal requirements, such as employers that are governed by child welfare laws. Unless such an exception would apply, employers would be required to revamp their applications to comply with the applicable laws.

Beyond state laws, employers and job seekers should be aware that some local municipalities, including Philadelphia, Chicago, Baltimore, Buffalo, New York City, and San Francisco, have also adopted some form of “ban the box” laws. Consequently, even if the employer is in a state that does not have a specific “ban the box” law, the organization would need to be mindful of the local ordinance.

Additional considerations

In addition to the issues presented by what an employer includes on an application, there are issues an employer faces if it excludes certain items from an application. For example, if an employer intends to conduct a background check on an applicant, it must comply with certain legal requirements set by state and federal law. Generally, this would include getting authorization from the applicant, which is typically collected through the application.

In terms of the federal law, the Fair Credit Reporting Act (FCRA) provides standards for applicant screening. Under the FCRA, if an employer uses an outside consumer reporting agency to conduct a background check, it must abide by a set of rules and regulations. FCRA states that certain information cannot be disclosed in a consumer report. This information includes civil suits and records of arrest after seven years and accounts placed for collection after seven years.

FCRA also mandates that, prior to obtaining a consumer report, an employer must get written authorization from the applicant. As such, the written application should include specific language that obtains the required authorizations from the applicant and provides the necessary disclosures mandated by FCRA. It should also be noted that certain states, namely California, impose additional hurdles for employers to jump over if they intend to use a background check. As such, employers should be careful to know and abide by the laws of their specific state in addition to FCRA.

Additionally, if the employer intends to eliminate a candidate based upon the information in the report, it must give the applicant a copy of the report and an explanation of his or her rights under FCRA, which includes the right to dispute the accuracy or completeness of the information in the report. FCRA limits only apply if an employer uses an outside consumer reporting agency. If an employer conducts its background check internally, it is not bound by FCRA limitations.

Once an employer gets through the obstacle course of the written application process, it then must overcome the minefield of the interview process.

The Interview

As with the application process, there are certain questions that are off-limits for employers to ask during the interview process. State and federal anti-discrimination laws prohibit an employer from eliminating an applicant based upon an individual’s protected classifications, which include, but are not limited to, an individual’s race, color, sex/gender, age, national origin, religion, or disability. Additionally, many states now include sexual orientation and gender identity as protected classifications. Employers are also strictly prohibited from engaging in practices that disproportionately limit employment opportunities that are not related to job requirements or business needs.

Interview questions should be limited to determining if an applicant is able to perform the essential job functions. Questions asked of all applicants should be similar, if not exactly the same. Employers are permitted to ask questions based upon a bona fide occupational qualification. This means that employers are permitted to ask applicants if they have a valid driver’s license, the ability to stand for periods of time, or a required degree, if such qualifications are necessary to perform a given job and are essential to the operation of the employer’s business. Employers should not ask an applicant if he or she has sued a prior employer or inquire about an applicant’s medical conditions during the interview process. With regard to the “have you sued” question, the Equal Employment Opportunity Commission has stated that such a question is a form of illegal retaliation that could expose an employer to potential liability.

With regards to the medical inquiry, an employer may not, however, ask about possible accommodations needed by an applicant to perform the position until after a job offer is made unless the applicant has an obvious disability that the employer reasonably believes would require an accommodation. Employers may, however, determine if an individual is able to perform the essential functions of a job. This can include the use of a preemployment test during the interview process, including an aptitude and skills test. An aptitude and skills test may be done “pre-offer” provided that it does not constitute a medical test. An employer may not use such tests unless the test is both job-related and consistent with business necessity. The employer must also administer employment tests effectively so that test results accurately reflect the skills, aptitude, or other factors the test measures and do not reflect an applicant’s impairment. Finally, the employer must make reasonable accommodations to the known physical or mental limitations of an otherwise qualified applicant with a disability during the testing process, unless the accommodation imposes an undue hardship.

Interview Questions

Medical Marijuana and Employment

A more recent issue facing employers is the medical marijuana conundrum. While marijuana is still a Schedule I narcotic (the same as cocaine and heroin), a significant number of states have legalized marijuana in some form, primarily to use in a medicinal manner. Each state that has legalized marijuana, medical or otherwise, has specific laws that pertain to the employment realm. Accordingly, employers must be aware of their state-specific laws and requirements. Generally, the laws prohibit employers from discriminating against an individual solely for having a medical marijuana card. As such, employers should not disqualify applicants merely if they disclose such information during the application process. The individual with a medical marijuana card should be afforded the opportunity to complete the hiring process the same as all other applicants. What an employer ultimately decides to do with a positive test for marijuana in a post-offer drug test must be in compliance with its own internal policies and the applicable law.

Actions for Employers

The majority of employers, and interviewers, are aware of what can and cannot be said during the hiring process. With that being said, it takes just one inappropriate question or statement during the hiring process to snowball into a lawsuit. As such, employers must ensure that they are in compliance with state, federal, and local laws that pertain to the hiring process.

Employers should review and revise their applications to confirm compliance with applicable laws and should have internal policies that indicate what occurs during the interview process and how applicants are screened out. The hiring process must be consistently applied to all applicants to ensure compliance with the laws.

Most importantly, employers must train all interviewers thoroughly to confirm that such individuals know what to say, what not to say, and how to act during the interview process. The interviewer is the individual who will ultimately protect a company from liability.