Screening potential employees dos and don’ts

What information can employers collect on job candidates? What protections do applicants have? Are there specific policies that employers should put into place to protect themselves from lawsuits? A recent continuing legal education program, "Employee Selection Procedures in the New Millennium," provided answers.

Studies show an increase in the screening of potential employees, said panelist Ronald Cooper, general counsel of the U.S. Equal Employment Opportunity Commission.

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Furthermore, obtaining information on job candidates can be done very quickly and very inexpensively, added panelist Michael Foreman, director of Civil Rights Appellate Clinic at the Pennsylvania State University Dickinson School of Law. He cited the growing popularity of FaceBook and Google in conducting research.

In addition to the Internet, common screening and testing tools include job proficiency exams, health assessments, criminal history and credit checks. However, employers must ensure that whichever tools they use do not screen out candidates by race, sex, age or disability.

Moreover, employers must make sure that their screening methods are appropriate to the job at hand and administered in a non-discriminatory fashion, emphasized Cooper. Panelist Lawrence Ashe, founding partner and chair of Ashe, Rafuse & Hill, suggested a sound analysis of job duties—handled by a well-trained human resources professional—to determine which tests are relevant. Guidance is available to employers through the Uniform Guidelines on Employee Selection Procedures adopted by the EEOC in 1978.

Even following such guidelines do not protect employers from legal risks. The number of discrimination claims has grown as companies screen job candidates with increased rigor, emphasizing the need for careful implementation of screening methods. Cooper suggested that employers maintain thorough records that show unbiased, relevant testing in place to back up their case, should it come to that.

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One area of caution involves arrest records. “If you have a blanket arrest disqualification policy, you’re going to face litigation,” warned Foreman. According to the EEOC, because the use of arrest records has a disparate impact on some protected groups, such records alone cannot exclude candidates from employment.

Employers should also be aware of the differences in state law, advised Ann Fromholz, senior counsel in the Labor and Employment Group at ConocoPhillips. For example, in California, there are limitations when asking about criminal history, including misdemeanors and expunged items, compared to other states.

Fromholz also recommended using legitimate screening channels. She recalled a time when she inadvertently learned of an employee’s arrest through a newspaper article. Information found in this way should not be used, she warned.

The use of credit information also is problematic as the EEOC recently adopted a more aggressive stance against it. Because adverse employment decisions based on credit reports can result in claims of disparate impact, employers should relate the use of such material to the position applied for, such as ones involving power over company funds.

For example, Donna Malin of Johnson & Johnson said her company’s policies on using credit information changed because of a suit brought against the company. Even though 40 percent of employers do use credit checks now, Johnson & Johnson's usage is extremely rare, said Malin.

More information from the EEOC about screening and testing may be found here.

To access a portion of the materials that were presented as part of the program, which was sponsored by the Section of Labor and Employment Law and the Center for Continuing Legal Education, click here.

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