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XpertHR’s David Weisenfeld Discusses Trends in Pre-employment Screening and Background Checks

More than two thirds (69%) of employers run criminal background checks on all of their potential employees according to a 2012 survey by the Society of Human Resource Management.

However, employers need to be very careful in how they go about running background checks on job candidates. Failing to follow recent guidelines laid out by the Equal Employment Opportunity Commission (EEOC) could land employers in hot water.

Being up to date on pre-employment screening and testing regulations is essential, which is why we asked Dovetail partner XpertHR’s Legal Editor David Weisenfeld to share his knowledge on legislative and regulatory key trends and issues you need to be aware when screening prospective employees in 2014.

Join us on December 10th for our webinar 2014 Trends in Pre-employment Screening and Background Checks to get the up-to-date information you need to ensure you can properly pre-screen employees and remain in compliance with the law. I asked David a few questions related to the topic to give you an idea of what we’re going to cover. Here’s what he said:

Emily Lewis: In the webinar, we’ll be discussing “Ban the Box” and Background Check Issues that have led to lawsuits against employers. You cite one case, in which the employer won the case because they proved they had taken a multi-faceted approach to the evaluation process. Can you discuss the case and some other background check developments?

David Weisenfeld: In that case, EEOC vs. Freeman, the court found it significant that the EEOC could not point to any specific policy creating the alleged statistical hiring differences. There was no “smoking gun” showing that the employer was automatically eliminating every applicant with any sort of criminal record.

Employers can also reference the EEOC guidelines issued last year following a settlement with PepsiCo after it was charged with discriminating against African-Americans by using criminal background checks.

While the guidelines do not prohibit the use of background checks, they remind employers they must use a three-pronged test: Employers must consider the nature of the crime, its relation to the potential job, and the time that has passed since the offense. The EEOC guidelines also say that employers must give applicants the chance to explain the circumstances of their criminal records.

EL: Will you expand on some of the legislation dealing with discrimination against the unemployed?

DW: In 2011, New Jersey became the first state to pass a law banning hiring discrimination against unemployed applicants. The law bans any job ad that lists “current employment” as a qualification for a job. Oregon and the District of Columbia have since followed New Jersey’s lead. Three other states have passed laws banning discrimination against the homeless in seeking employment, so that’s another notable trend to keep an eye on.

EL: What does the legalization of medical marijuana in certain states mean for employers regarding drug testing?

DW: Surprisingly, it means less than you might think. Courts even in pro-employee states have generally held that medical marijuana use is no excuse for a failed drug test. Most notably, Wal-Mart won a case in which a cancer patient was fired after a positive marijuana test. Perhaps not the best company PR, but it shows employers still have a relatively wide berth when it comes to drug testing.

Employers in the 20 states where medical marijuana is legal also remain under no obligation to permit the drug’s use in the workplace. Still, states are passing these laws for a reason so the courts’ views on this issue may evolve in the future.

EL: Can you expand on some of the legislation in certain states regarding screening applicants’ social media participation during the hiring process? Is anything not password protected fair game?

DW: Numerous states have passed laws since 2012 banning employers from asking job applicants or employees for their social media passwords and/or usernames.

Information that can be accessed on public websites is indeed fair game. But it is wise to proceed with extreme caution. For instance, finding out protected information such as an applicant’s age or ethnicity through a public site could expose an employer to later liability if it uses that information as the basis for an employment decision.

EM: How has the landscape changed regarding employers’ using credit checks in their pre-employment screening process during the last few years?

DW: As recently as 2007, not a single state had a law restricting employers from using credit checks to screen job applicants during the hiring process. Today, there are 10 states with laws banning this practice subject to limited exceptions, including the entire West Coast. Many view the use of credit checks for employment purposes as having a disproportionate impact on minority applicants and women. So the trend is definitely going away from this practice and that’s something I suspect will continue in parts of the US.

Join us on December 10th to hear more on these topics and discuss other trends with XpertHR’s David Weisenfeld. Attendees receive 1.0 hours of general recertification credit and will leave with the information they need to ensure they remain compliant and are following EEOC guidelines when running pre-employment screening tests and background checks.

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