Don’t Be Left In The Dark! Eight Keys To Avoiding HR Lawsuits!

Today’s post is about a major issue HR faces when a job candidate aces an interview and everything seems to be a “go” for the hire.  Does this person have a “past” and should we do a background check?

Background checks have many flavors, including:

Eligibility to Work in the U.S.

You can only put new hires through E-Verify; not job applicants and not current employees.  Arizona law requires you to E-Verify all new hires.  Your job application form should have a line which asks “Are you eligible to work in the United States?”

Prior Employment Verification

The job application form should ask the applicant to identify prior employers; identify the reason for leaving and whether you may contact prior employers.  The main question to ask a prior employer is whether the job applicant is eligible for rehire.

Educational Verification

Resume fraud is on the rise.  If the job description requires a college degree, you need to check with the job applicant’s college to be sure the resume is accurate.

Personal and Professional References

You should call the individuals identified on the job application as references.  You may be surprised at the results….

Motor Vehicle Records

This should be used only if the job description requires driving.

Credit Checks

These are governed by the federal Fair Credit Reporting Act (FRCA) and an employer must jump through all the statutory and regulatory “hoops.”  The U.S. Equal Employment Opportunity Commission (EEOC) seriously dislikes credit checks.  See the following for EEOC’s position:

http://www.eeoc.gov/laws/practices/inquiries_credit.cfm

http://www.eeoc.gov/eeoc/foia/letters/2010/titlevii-employer-creditck.html

Criminal Checks

EEOC also is serious about criminal background checks violating Title VII of the Civil Rights Act.  EEOC issued a guidance on this topic, which some federal courts don’t like.  Please see the following:

http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

EEOC emphasizes that any use of criminal background checks must be job-related.  The employer must consider the nature of the crime, the time elapsed since the conviction and the nature of the job.  The job application may NOT ask about arrests.  If it requests information about convictions, it must say, “Conviction does not automatically disqualify.”

Additionally, criminal background checks are governed by the FCRA so the same statutory and regulatory requirements apply as in credit checking.

EEO laws apply if you have 15 or more employees.  FCRA applies if you have one employee.

Drug and Alcohol Testing

The Arizona Legislature mitigated the effect of the Medical Marijuana Act by creating “safety sensitive” positions in the Drug Testing of Employees statutes.  So long as you comply with the Drug Testing of Employees Act and denote appropriate positions as “safety sensitive” (usually those involving driving or working with heavy machinery or traveling to customers’ homes and offices), medical marijuana cardholders may be treated differently with respect to these positions.  As alcohol testing is governed by the Americans with Disabilities Act, a job offer can be contingent upon a prospective employee’s success with an alcohol test.

More details about these and other hiring issues in future posts.

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