When making personnel decisions - including hiring, retention, promotion, and reassignment - employers sometimes want to consider the backgrounds of applicants and employees.
For example, some employers might try to find out about the person's work history, education, criminal record, financial history, medical history, or use of social media. Except for certain restrictions related to medical and genetic information, it's not illegal for an employer to ask questions about an applicant's or employee's background, or to require a background check.
If you get background information (for example, a credit or criminal background report) from a company in the business of compiling background information, there are additional procedures the FCRA requires beforehand:
Tell the applicant or employee you might use the information for decisions about his or her employment. This notice must be in writing and in a stand-alone format. The notice can't be in an employment application. You can include some minor additional information in the notice (like a brief description of the nature of consumer reports), but only if it doesn't confuse or detract from the notice.
Get the applicant's or employee's written permission to do the background check. This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person's employment, make sure you say so clearly and conspicuously.
Use background check services that are FCRA compliant.
The Fair Credit Reporting Act (FCRA) is fairly clear on what you can and cannot do as part of a background check with regards to credit information. Nearly all background checks are governed by the Fair Credit Reporting Act (FCRA), but you should know that there are an array of other laws that affect them, depending on state and region.
Get legal advice on how local and state laws govern your use of background checks.
Several states laws limit employers use of arrest and conviction records to make employment decisions. These laws may prohibit employers from asking about arrest records or require employers to wait until late in the hiring process to ask about conviction records. Get legal advice on basic criminal history laws for each state.
Give candidates a chance to clear up mistakes or misunderstandings with background checks.
Information obtained through background checks can sometimes be slightly incorrect and even outright wrong. Giving candidates a chance to rectify or explain incorrect information can help you save a great candidate that could have been excluded.
Use background checks consistently not on a candidate-by-candidate basis.
Apply the same background check process to every candidate you interview for the role. Applying it selectively to only candidates form a specific background or experience level can cause unintended legal consequences if it is shown to be a proxy for illegal discrimination. Outside of this, waving some candidates through based on gut feeling defeats the purpose of doing a background check to protect your company.
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Terminating an employee for poor performance…seems easy right?
On the surface, terminating an employee for poor performance seems simple. It’s nothing personal. The employee just isn’t getting it done and would be better off in another job. But even when a termination is 100% justifiable, managers must be extremely careful how they conduct themselves. Terminations, no matter how clear cut, can have legal ramifications.
Most businesses are protected to a certain extent by at-will laws, which allow the firing of employees for no reason. However, at-will employment does not keep an employee from filing a lawsuit for wrongful termination and, even if the courts rule in your favor, your business will be required to pay court costs. It’s best to take a few measures to protect yourself before firing an employee to avoid a costly legal process.
Here are 5 Tips to Termination:
- Document, document, document! Detailed, consistent documentation can defeat many claims of defamation, discrimination and wrongful discharge. Great documentation shows a pattern of clear expectations on your part, and repeated failures on the employee’s part.
- Make your Employee Handbook work for you and not against you. Make sure your employee handbook and policies are clear and concise. If you just downloaded one from the Internet, chances are it needs updating. Review the handbook annually and get a new acknowledgement from employees every year. Don’t have a handbook? Even small employers should consider having an employee handbook, it ensures your employees know their expectations, and understand workplace policies and procedures.
- Make sure your termination process is fair and standardized. It should be delivered consistently no matter who the employee, in fair, non-emotional way. Don’t embellish the reasons for termination, you don’t want a defamation case on your hands!
- Conduct a proper termination meeting. Unless the employee is volatile, do not terminate them via email, phone, or text. If possible conduct a proper termination meeting. Have witnesses, be brief and concise, and document!
- Involve HR! If an employee is in a protected class, has a known medical condition or disability, has taken job protected medical leave, or if there is suspicion of any other legal issue (e.g. harassment, retaliation), be sure to consult with HR or an employment attorney before terminating.
An employment application should not include any questions that will produce a response that would indicate an applicant’s protected class such as age, race, national origin, disability, etc. Such inquiries may be used as evidence of an employer’s intent to discriminate, unless the questions asked can be justified by some business purpose of the employer.
It’s important to note that Information needed to conduct background checks should be obtained on a separate form authorizing the employer to conduct the check.
Some common inquiries to avoid on your application are:
Birth dates: Making inquiries about an applicant’s birth date can give the perception that the employer is using age as a decision-making factor in the hiring process. If federal law or the employer’s state law requires a minimum age for employment for certain occupations, then the employer can ask applicants if they are at least the minimum age required for employment.
Graduation dates: Making inquiries of an applicant’s school graduation date can reveal an applicant’s age. To obtain information on whether an applicant holds a degree or a diploma, the employer can simply ask if the applicant has graduated and what degree was obtained.
Military discharge information: Questions that are relevant to work experience and training received are permissible. However, an employer should not ask an applicant the reason he or she was discharged from the military or request to see military discharge papers, except when directly related to the job or to determine veteran’s preference.
Race inquiries: An applicant’s race or color should not be asked on an employment application. Some employers may track their applicants’ race for affirmative action plans or compliance with the Uniform Guidelines on Employee Selection Procedures, but this should be done apart from an application. This information is not used in the selection process and is voluntary for the applicant.
Citizenship: Inquiries about an individual’s citizenship or county of birth are prohibited and can be perceived as discrimination on the basis the individual’s national origin. An employer can inquire if an applicant is legally eligible to work in the United States and inform the applicant that proof of his or her eligibility to work in the United States must be provided if selected for hire.
Maiden name, Miss, Mrs. and Ms.: Many states prohibit marital status discrimination, making any questions related to that status possible evidence of discriminatory hiring practices.
Social Security number: Although asking applicants for their Social Security numbers is not unlawful, requesting this information from applicants is not recommended due to identity theft and privacy concerns. Employers do not need this information until it is time to run a background check or complete a W-4; therefore, including it on an application carries unnecessary risk.
Salary History: Some states prohibit an employer from requesting salary history information from candidates. These laws are designed to promote greater pay equality by forcing employers to develop salary offers based on job requirements and market pay levels.
Both state and federal labor law posters are required for businesses. If a business has one or more employees, it is required by the law to post federal, state and OSHA mandatory posters. More specifically, the following six postings must appear in each workplace location: federal minimum wage, Employee Polygraph Protection, OSHA, FMLA, USERRA, and EEO. You may purchase them individually or together on an all-in-one labor law poster.
Where should Posters Be Placed?
Labor law posters should be displayed somewhere apparent to all employees on a daily basis, such as a break room or main lobby. If you have multiple locations, then each workplace should display its own posters.
When Are Posters Not Needed?
Although it is recommended, the following types of businesses do not need to post labor law posters:
- Sole Proprietor without employees
- Businesses with only contract employees
- Businesses with an all-volunteer work force
- Family owned business where ALL employees are related
Do my posters need to be multilingual?
If you have a business that is located in Arizona, California, Florida, Georgia, New Mexico, North Carolina, New York or Texas you will have to post both Spanish and English versions of the posters. If your business is not in one of these states, then it is not mandatory for you to display the bilingual posters; however, it is a smart thing to do if you employee Spanish-speaking workers.
Do I have to change my posters every year?
The frequency of Labor Laws varies by state. Employers must change posters when the State, Federal or OSHA agencies make legislative or regulatory changes. The most expected update to occur is state minimum wage rates.
What is the penalty for failing to display Labor Law posters?
Federal and State fines are imposed by various agencies. These fines may vary.
- Federal FMLA $100 per offense.
- For failing to post the Federal OSHA Poster - A civil penalty of up to $7,000 may occur.
Unsure if you are compliant? Need help finding the forms, posters, or guidance? Contact your HR Advisor today!