Modern-day employers are not only confronted with the challenges of adapting their policies and practices for their workforce to conform with the ever-changing landscape of employment law, but are now grappling with new potential landmines arising from the hiring process. This article will highlight in broad strokes certain "new rules" that modern-day employers face in their hiring practices, ranging from issues that they may face in the job advertisement and application process, to multiple traps to be aware of leading up to a candidate’s first day of employment.
Job Postings and Applications
Most employers generally know not to include job criteria that would exclude certain groups of candidates in violation of federal, state or local laws. However, while the majority of employers are likely aware of the more traditional protected characteristics, such as race, sex, national origin, religion and disability, some employers may be surprised to find that some states and localities have enacted protections for additional nontraditional groups, such as the unemployed. By way of illustration, New York City recently amended its administrative code to extend discrimination protection to the unemployed. The amendment, which will take effect today, prohibits employers from advertising for a job vacancy by listing as a requirement or qualification that the candidate is currently employed or stating that the employer will not consider individuals based on their unemployment. Some states, including Oregon and New Jersey, as well as the District of Columbia, have also enacted similar laws extending protection to the unemployed.
Another nontraditional group that many states and localities are seeking to protect is individuals who have been arrested and/or convicted of a crime. To date, seven states and 50 cities or counties across the United States have enacted "ban the box" laws, aimed to prohibit employers from including in their applications questions asking candidates whether they have ever been arrested or convicted of a crime. Philadelphia, for example, enacted an ordinance effective July 2011, generally prohibiting employers from inquiring about nonconviction arrests and, separately, from inquiring about conviction history until after an applicant’s first interview, e.g., following the applicant’s application and first interview. State laws on this issue are also wide-ranging. For example, the Pennsylvania Criminal History Record Information Act allows limited consideration of convictions (felony or misdemeanor), but only when they are related to suitability for the particular position. The Pennsylvania law further requires employers who rely upon such conviction information to deny employment to notify the applicant(s) in writing of their decision.
These laws, coupled with the Equal Employment Opportunity Commission’s April 2012 guidance regarding employer use of arrest and conviction records in employment decisions, further confirm that lawmakers and agencies are intent on combating what they view as practices that have disparate impacts on certain protected groups. In its guidance, the EEOC advised — as a best practice — for (1) employers not to ask about convictions on job applications and (2) if employers wish to make such inquiries, the inquiries should be limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity. The EEOC also recommended treating arrest records and conviction records differently, noting that while convictions may be acceptable grounds for denying employment under the right circumstances, arrests alone should never be used to deny employment.
With the increased access to information brought on by the Internet Age, employers have more information about candidates — particularly those that have not safeguarded their personal information — than ever before. Searches through various social media sites (e.g., Facebook, Twitter, LinkedIn) may give employers a glimpse into how candidates represent themselves in their personal lives, outside of the work environment. From the employers’ perspective, more information about candidates is a boon so they can minimize the risk of hiring individuals who misrepresent their credentials during the application/interview process and also who, if hired, may reflect poorly on the employer, by association. Simple Google searches of candidate names could generate information as harmless as statistics and game scores from the candidate’s college athletic career, but also could generate information about the candidate’s identity and personal life that the employer would not have otherwise known, such as pictures from which employers may be able to identify race, age, religion or even testimonials authored by a candidate regarding his or her battle with a certain medical condition. This type of information opens the door to a discriminatory failure to hire claim from the candidate who was not selected for the job that the well intentioned employer never anticipated.
Beyond the seemingly unintentional pitfalls, some employers have gone — as some states have viewed it — too far in their informal background checking by requesting from candidates access to their personal social media sites. States — the first of which was Maryland in 2012 — have taken action in response, enacting Facebook laws to prohibit employers from requesting this type of access. Since 2012, several additional states, including California, Illinois, Michigan, Arkansas, Colorado, New Mexico and Utah, have enacted laws prohibiting employers from this conduct, and legislation is pending in the large majority of the remaining states.
Post-Interview or Post-Offer Concerns
Following the selection of a candidate, employers often extend offers of employment that are conditioned upon satisfactory completion of background checks and, in certain circumstances, medical evaluations. On the former, while many employers are generally aware of their notice obligations under the Fair Credit Reporting Act when using third-party consumer-reporting agencies to perform these checks (e.g., notification to obtain a report; signed authorization; pre-adverse action disclosure of report and summary of rights; adverse action notification), employers must take note that as of January 1, they are required to issue a revised summary of rights that has been released by the Consumer Financial Protection Bureau — the federal agency that has taken over responsibility for overseeing the FCRA from the Federal Trade Commission. While the revised summary of rights does not substantively change employers’ notice obligations under the FCRA, employers must ensure that the forms they distribute in connection with these background checks are the correct updated forms. Failure to comply with the FCRA may carry harsh consequences, including both civil and criminal penalties.
As for post-interview or post-offer medical examinations, the EEOC announced May 7 that it settled the first Genetic Information Nondiscrimination Act bias case that it has ever filed, arising from a medical questionnaire issued by an employer’s contracted medical provider requiring the candidate to disclose the existence of numerous disorders from her family medical history. On May 16, the EEOC also filed its first GINA class action against a nursing and rehabilitation center in New York, asserting that the employer engaged in a pattern and practice of requesting family medical history, including as part of its pre-employment processes. As a reminder, GINA prohibits employers from discriminating against and/or making employment decisions based on an individual’s genetic information. It also restricts employers from requesting, requiring or purchasing such information. This settlement and the recently filed class action serve not only as reminders to employers that the EEOC is actively enforcing GINA, but also a lesson to employers to ensure that their pre-employment medical evaluations, as well as those performed by contracted medical providers at their request, are done in accordance with applicable law.
While many of these new rules may on their surface appear to be reiterations and reapplications of principles that many employers already consistently follow as best practices, the landscape of employment law and the protections that are extended to applicants and employees is constantly changing to assure no applicants are inadvertently or intentionally biased in the application and interview process, and prudent employers around the country are modifying their hiring and recruiting practices accordingly.
Brooke T. Iley provides corporate counseling and litigation in the areas of traditional labor and employment law at Blank Rome. She advises clients on a variety of matters, including employment policies and best practices, as well as strategic workforce planning. She can be reached at firstname.lastname@example.org.
Julie E. Reid is an attorney at the firm. She provides strategic advice and counseling to clients and handles litigation in various employment and labor law matters. She can be reached at email@example.com.
Harrison Lee is an associate in the employment, benefits and labor practice group of the firm’s Philadelphia office and can be reached at firstname.lastname@example.org.