As discussed in part I, an increasing number of employers are conducting some form of pre-employment screening on job applicants. Employers are researching not only a candidate’s educational qualifications and prior job history, but also a candidate’s criminal history, credit history and online presence. At the same time, the Equal Employment Opportunity Commission (EEOC) and various states have begun scrutinizing the legality of some of these practices.
Part I of this article covered issues to consider when conducting criminal background checks. Part II discusses three other pre-employment inquiries that have received increased attention from the EEOC:
Finally, the EEOC is scrutinizing the use of credit checks in employment. In October 2010, the EEOC held a public meeting regarding their potential disparate impact , taking the position that credit checks should be job-related and consistent with business necessity. For example, a credit check may be okay for an applicant who is applying for a position with a bank where he or she will be handling large sums of cash. However, according to the EEOC, it is never okay to subject all job applicants to a credit check, regardless of position. It is anticipated that the EEOC will issue guidelines regarding employer use of credit checks for employment decisions.
As an example of its increased scrutiny of employee credit checks, the EEOC filed suit against Kaplan Higher Education Corporation in December 2010, arguing the company violated Title VII by rejecting job applicants based on their credit histories. The EEOC contends Kaplan’s policy had an unlawful discriminatory impact because of race and was not job-related or justified by business necessity. That lawsuit is still pending.
Employers who choose to cruise the electronic superhighway for information pertaining to job applicants should consider implementing several safeguards, such as:
- Adopting a policy or formulating guidelines regarding the breadth and scope of online searches. Employers may decide to limit the search to particular items or time periods
- Limiting searches based on the job position (i.e., only conducting searches for particular positions)
- Separating online researchers from those making hiring decisions
Discrimination against the unemployed
In addition to possible changes at the federal level, some states are considering legislation banning discrimination against the unemployed. New Jersey became the first state to prohibit the practice of excluding unemployed individuals in job advertisements. Specifically, New Jersey’s new law prohibits employers from “knowingly or purposefully” publishing a job advertisement requiring an individual to be currently employed or stating that an employer will not consider applications by unemployed individuals. Employers who violate the law may be subject to monetary penalties of $1,000 for initial violations, $5,000 for second violations and $10,000 for each subsequent violation. Notably, the law does not preclude employers from publishing job advertisements requiring current or valid occupational licenses, certifications or other credentials or a minimum level of education, training or professional experience. Several other states, including New York, Michigan and Illinois, are considering similar legislation.
As a result of this increased scrutiny and New Jersey’s recent enactment, employers should review job advertisements and employment applications and ensure the advertisements and applications do not preclude unemployed individuals from applying for open positions. Finally, employers should review hiring procedures to ensure equal treatment of unemployed applicants during the hiring process.