Rule of Law - March/April 2010

Hiring: Focus on the Essentials

Karen Harned, executive director of NFIB’s Small Business Legal Center

Karen R. Harned

Are you Thinking about hiring a new employee? Applications, résumés and interviews are essential. But background and reference checks can also help. Here are tips for getting the information you need.    

Interviews—Ask or Don’t Ask?

Under employment laws, you may not ask about age, disability, gender, national origin, race, religion, marital status or pregnancy. Avoid issues that infringe upon privacy, like sexual orientation or politics. You may ask questions related to skills and experience. You may ask why someone left a job or what they disliked about the position.

Background Checks—Necessary or Not?

Background checks confirm the accuracy of an application. Generally, these checks are permissible. You can confirm employment dates and titles. In addition, Manesh Rath, partner specializing in employment law at Keller and Heckman LLP, recommends asking whether or not the former employer considers that worker eligible for rehire. “Even a former employer that restricts its references to neutral data should be willing to answer that question,” Rath says. He also suggests asking if the employee is subject to restrictive agreements, like a non-compete or a confidentiality agreement.

Rath reminds employers of federal and state restrictions on background checks.  

• Driving record. Most states permit an employer to access a driving record if relevant to the position.
• Criminal background. Many states prohibit requests for a criminal background check unless it is relevant to the position. Other states limit the type of inquiry, preventing you from seeing too far in the past or any sealed records. Finally, the U.S. Equal Employment Opportunity Commission has an opinion that employers should limit their search to felony convictions and should not seek information about arrest records.
• Credit reports. Under federal law an employer may not perform a credit check on an applicant without written consent. Rath advises not to discriminate based on bankruptcy data in a credit report. Most states prohibit employers from relying on a single instance of a garnishment on a credit report.
• Medical testing. Under federal law, an employer may not request medical records. You may ask whether the employee is capable of performing job duties with or without reasonable accommodations.
• Educational records. An educational record is protected under federal law. Obtain express written consent to access it.

Always inform the applicant that you will be performing a check, get written consent and limit the search to relevant information for the job. In some states, the employee is required to receive a copy of the results.

Reference Checks—Do It!

References can help you evaluate an applicant’s qualifications. To encourage employers to be candid, get consent from applicants. Be consistent in what you ask. Ask about employment dates, duties, strengths, weaknesses and whether the individual is eligible for rehire. Don’t ask about personal qualities. Check multiple references.