Important considerations for employers in the hiring process.
Employers strive to staff their offices with dedicated, hard-working and smart employees. They want a workforce that reflects the values of their businesses. Prospective employees highlight their best attributes in interviews, while employers try to gauge whether those individuals would be a good fit for their companies. Investigation beyond the interview is critical to ensure the best people are hired, and many employers are conducting their own investigations to achieve that goal.
To find the best people among prospective applicants, employers are using both online and traditional resources. The legal considerations surrounding an online pre-employment investigation are generally consistent with those of a more traditional investigation. This is true despite rapidly-developing online investigative tools that provide access to vast amounts of information on job applicants. This article sets forth important considerations for employers when hiring new employees, whether using online resources or not.
Protective Characteristics: Online and Offline
First and foremost, when considering applicants, an employer must avoid consideration of protective characteristics, including a person’s age, race, ethnicity, religion, disability, gender, religion, sexual orientation, pregnancy and veteran status. When investigating an applicant’s background, care should be exercised to avoid purposeful discovery of these protected characteristics. For instance, searching online to determine whether an applicant is affiliated with a certain church is not wise. There are instances when protected characteristics will be discovered simply by accessing someone’s profile on Facebook. A profile open to the public may disclose a protected characteristic, such as the applicant’s religion or sexual orientation. In that instance, the protected characteristic should be ignored when the decision on hiring is made.
Avoiding knowledge of the protected characteristic is best. Indeed, it is easier to claim you were unaware of a particular characteristic versus acknowledging awareness but denying that it factored into the hiring decision.
Caution must be exercised when searching social network websites like Facebook or Twitter. The Illinois Right to Privacy in the Workplace Act prohibits an employer from asking for a password or other account information to gain access to an employee’s social networking profile. The Act does not prohibit the employer from obtaining information about the prospective employee that is within the public domain. In other words, if a prospective employee’s Facebook account is “open,” the employer may view the account for useful information concerning the applicant. However, employers should not surreptitiously become “friends” with an applicant—including through a third party. Information within the public domain is fair game, while stealth tactics to gain access to information outside of the public domain creates legal exposure.
Criminal and Credit History
Employers must also use care when conducting criminal background checks, which are regularly used by employers as a screening tool, with some going so far as to check online criminal court dockets of applicants. Effective January 1, 2015, in Illinois, unless it falls within an exemption, an employer may not inquire about or otherwise consider a job applicant’s criminal record or criminal history until the applicant has been determined qualified for the position and the employer has notified the applicant that he/she has been selected for an interview. If there is no interview, the employer may not inquire about or consider a job applicant’s criminal history until after a conditional offer of employment has been made.
Illinois law also prohibits asking an applicant about criminal convictions that have been sealed or expunged. In addition, due to the potential for “disparate impact” on minorities, both Illinois and federal law limit employers to conducting criminal background checks only for crimes related to the job for which the applicant is applying.
In addition, Illinois law prohibits an employer from asking about an applicant’s credit history or obtaining a copy of their credit report, unless the position qualifies as a “bona fide occupational qualification,” which includes positions where the applicant would have unsupervised access to cash, signatory power over cash transactions, managerial duties or access to confidential information. For example, it is lawful to conduct a credit search on an applicant who would be responsible for banking transactions. Where the prohibition is applicable, such prohibition extends to using a third-party reporting agency to obtain an applicant’s credit history.
Additional Limitations
Finally, there are several other obscure laws placing limitations on what may be considered during the hiring process. Illinois law prohibits an employer from asking an applicant whether he/she has ever filed a workers’ compensation claim. It is unlawful to use the E-Verify system prior to hiring an applicant, and the system cannot be used by an employer to check on the eligibility status of non-employees. To the extent employers use consumer reports in connection with the hiring process, they must follow the requirements of the Fair Credit Reporting Act, which includes giving notice to and obtaining written authorization from applicants.
Illinois law also prohibits employers from refusing to hire individuals based upon their use of lawful products outside of the workplace, unless the employer is a nonprofit organization that, as one of its primary purposes, discourages the use of one or more lawful products, or use of the product impairs a person’s ability to perform the job. Therefore, uncovering pictures on the Internet of an applicant smoking cigarettes or drinking alcohol beverages should not exclude them from employment consideration. However, embarrassing images showing the applicant engaging in this lawful behavior in a dangerous or less-than-reputable manner can be used to exclude him or her from employment.
Generally speaking, an online pre-employment screening process should comply with all laws and be uniform to all applicants. A neutral, lawful reason should underpin any hiring decision. iBi
The information in this article is not intended to be legal advice. Those with questions about hiring employees should consult an attorney for advice.
