Pre-Employment Screening

By: Joel J. Greenwald, Esq.

Because hiring competent workers is always a challenge, pre-employment screening has become very important to employers.  To effectively use pre-employment screening techniques, however, employers must be aware of their legal obligations and limitations.

Why are employers spending so much time and money on pre-hire inquiries and investigations?  It has been suggested that up to 40% of résumés contain material lies or omissions about education, past jobs, or qualifications. Potential workplace disruption or violence, or the possibility of workplace theft, fraud or embezzlement may concern an employer. Given the wasted time of recruiting, hiring, and training a new employee who doesn’t work out, employers need to be very careful.  Finally, the current prevalence of employee lawsuits for negligent hiring, promotion or supervision practices and for wrongful termination may certainly give an employer pause.  As a result, employers try to gather as much information as possible on potential candidates.  There are, however, a number of  issues employers should keep in mind when doing so.

Interview Guidelines

Federal and state laws protect applicants from having to answer any questions from a prospective employer that may be of a discriminatory nature.  Therefore, an employer must conscientiously avoid asking questions that have no bearing on the candidate's ability to perform the functions of the job that is open. 

An employer may not ask the age or birth date of an interviewee, unless it is to determine whether a prospective employee is old enough for legal employment.  Questions about marital status, family responsibility, childcare arrangements and future child-bearing plans may also be illegal.  No questions about race, color, religion, or religious holidays observed are generally permitted. Also, an employer should not ask an interviewee's birthplace, national origin or first language.  An employer cannot ask questions about physical condition or disability, but can ask whether a potential hire can meet job description requirements with or without reasonable accommodation, if the employer asks the same question of all other applicants for the same job or class of job. 

Background Checks

Background checks can be an effective method in screening applicants.  Improper inquiries, however, may violate certain state or federal laws, exposing an employer to liability.  Inquiries into information that could disclose that an applicant is a member of a minority group may expose an employer to unanticipated litigation.

An employer who uses a third party to conduct background checks is required to give the applicant a clear and conspicuous written disclosure of its intent to do so in a document consisting solely of such a disclosure.  The employer must also receive consent from the applicant and make certain disclosures concerning the use of such background checks.  This effectively discourages the applicant with something to hide, and encourages an honest applicant to disclose a previous problem. 

Should a business decide to reject an applicant on the basis of a report received as part of a background check, it may be required to inform the applicant of this fact and/or provide information on the report and on the applicant’s rights, including methods available to challenge it.  Thus, employers should ensure they have a business justification for denying employment based on the results of a background check.

Lie Detector Tests

Employers are generally prohibited from requiring, requesting, suggesting or causing any employee or job applicant to take or submit to any lie detector test.  An employer may not deny employment to any job candidate for refusing or failing to submit to such a test.  There are limited exceptions, permitting employers in certain industries to administer pre-employment lie detector testing.

Medical Screening

Usually, employers are not permitted to require applicants to undergo physical examinations or testing before an offer has been extended to that applicant.  Once an offer has been made, an employer may, in limited situations, be allowed to require testing or a physical examination. 

Conclusion

Every company should establish a hiring program that ensures compliance with laws protecting employee and applicant rights.  If pre-employment screening devices are to be used, this should be clearly disclosed in the application process.  Good judgment, careful application and interview practices, and judicious background investigation will ensure that an employer hires the best possible people, without unreasonably exposing itself to claims.

This article was originally published in Exhibit Builder in March of 2006.

The materials contained within this article are for informational purposes only and are not legal advice nor are they to be used as a substitute for legal advice.  These materials have been prepared by Greenwald Doherty LLP and should not be reproduced without permission.  © 2006 Greenwald Doherty LLP all rights reserved.