⊕LEGAL: Hiring? Tips on using background checks, social media investigations and pre-employment testing

Jeff Jones
Jeff Jones.

Hiring new employees can be an expensive, time-consuming task. An employer can be prepared with standard forms and interview questions, but still not have enough information to truly evaluate someone who may be a member of the workplace “family” for years to come. Employers would be wise to spend a little more time in obtaining relevant background information. The law, however, sets some important ground rules on how to gather such information, and knowing them is critical when attempting to learn more than what is presented on a resume.

The best place to start with background screening is with the employment application itself. In addition to the basics (work history, education, qualifications), an employer should consider requesting job and personal references, as well as permission to conduct one or more background checks. Toward that end, the job application should include a separate form signed by the applicant, specifically authorizing the employer to verify the application information, contact references and conduct background checks.

A background check is the most common type of screening information requested by employers today, and it can include criminal history, credit check and/or other personal information. Most employers use third-party providers to gather such information, in which case, the rules under the Fair Credit Reporting Act (FCRA) apply. Before requesting a third party to conduct a criminal background check, the employer must provide notice to the applicant and obtain a signed authorization. Employers who conduct public records searches themselves, or call to verify job history or to speak with references are not bound by the FCRA requirements.

A background check should not be requested unless it is job-related. The employer should be able to articulate, in objective terms, why it may be relevant to an employment decision. For example, a credit check would be suitable for employees responsible for handling cash, or who are subject to a bonding requirement, but not for someone working as a construction worker, for example.

Some states and towns (but not Tennessee) have limited when criminal background checks can be performed, and prohibited employers from asking applicants about any criminal convictions on their employment applications, under a recent wave of so-called “ban the box” laws. However, regardless of when criminal background checks are performed, not everything in someone’s history is always relevant. Accordingly, employers should be careful how they use the information. In 2012, the EEOC updated its guidance in this area, to the cheers of some and the derision of others, requiring employers to conduct an “individualized assessment” before making a hiring decision on the basis of criminal history. Thus, an employer should gather additional facts about any particular incident of concern, and determine if it is truly related to the necessary job qualifications, before deciding to reject an applicant on that basis.

For example, if a 30-year-old candidate (who was otherwise qualified) was arrested when he was 18-years-old for vandalizing his high school as part of a senior prank, but had no other blemishes on his record, rejecting him for the incident would most likely not be job-related and therefore run afoul of the EEOC’s guidance. Furthermore, it might also be viewed as a pretext for some unlawful reason why he was not hired, such as discrimination on the basis of race or national origin.

Employers and recruiters are turning more frequently to social media for additional background screening information. Jobvite’s 2014 Social Recruiting Survey reports that approximately 94 percent of recruiters will use LinkedIn to solicit candidates or gather background information on applicants. This far exceeds the number of recruiters who use Facebook (32 percent) or Twitter (18 percent) for getting background information on candidates.

Social media can productively be used to investigate professional experience, specific skills, examples of work product and other relevant work-related information. This explains why LinkedIn is the top choice of social media sites used by recruiters. However, employers may find Facebook and/or Twitter to be more relevant for other helpful information, such as identified in the Jobvite study: e.g., profanity, spelling and grammar errors, illegal drug references and sexual posts. These issues can legitimately be considered by the employer, so long as they do not encroach on a protected class such as religion, sex, disability, race or national origin. On the positive side, employers may learn about volunteer work and donations to charity. Accordingly, open social media sources may provide valuable information if used correctly.

Use of social media is not without risks, however. Many states, including Tennessee, prohibit employers from requiring an applicant to give access to “private” areas of social media. Additionally, information on social media may reveal that the candidate (or someone affiliated with them) has health issues or a disability, or is otherwise a member of a protected group, and such factors cannot legally influence a hiring decision. Additionally, personal medical information and family medical history (e.g., a relative recovering from cancer) are matters that if considered in hiring will likely violate the Americans with Disabilities Act (ADA) and/or the Genetic Information Non-Discrimination Act.

To avoid a claim that information sourced on social media was wrongfully used to make a hiring decision, the employer should designate a single individual to search social media and only gather (and print) information relevant to the hiring decision. Then, only relevant information should be shared with the hiring manager.

The other area for background screening – and one often forgotten by employers – is to verify each applicant’s education, job history and reference checks pursuant to their signed authorization as mentioned above. It can be helpful, for example, in confirming whether an applicant actually graduated from a college or university, or just took classes. It can also be helpful in obtaining more information from another employer than just the dates of employment, last position held, and wage rates. Although employers are free to provide truthful information about a former employee, they may be hesitant to do so due to fear of litigation if the employee is not hired for the new job, and a signed authorization can make all the difference. Keeping good notes of who the employer spoke with and the information provided is critical if a hiring decision is made based on the background check.

Of course, all screening must be done uniformly and consistently for all relevant applicants. It can be done after a conditional job offer, or after an initial round of screening for minimal qualifications, or after the employer has narrowed the field to a final list of candidates. The information-gathering can also be spread over time, with some information gathered before an interview and other information gathered before a final hiring decision is made. Regardless, the same processes and the same timing should be used for all applicants for the same job and/or comparable positions, with criterion and results applied equally. Selectively doing background screening for only certain applicants will open the employer to claims of discrimination.

In addition to background screening, employers can do a variety of pre-employment testing. The most common is pre-employment drug testing. These tests should only be used after a conditional job offer has been made and the person should not start work before the results are in. The employer should have procedures in place 1) to inform the employee of the requirement for a drug screen and the process to be followed, and 2) to obtain the prospective employee’s prior written consent. The employer should only use a reputable drug testing facility, and positive test results should always be verified before notifying the employer.

While more states have started authorizing the use of medical marijuana and some have legalized recreational marijuana, that does not mean (at least in most of these locales) that employers must allow employees to come to work under the influence of marijuana or to use marijuana at work. Active drug use is not protected under the ADA, but drug dependence and the need for drug treatment may be. Accordingly, employers should have a policy in place on the consequences of a positive test and apply that policy consistently to avoid claims of discriminatory treatment.

Lastly, some employers like to use aptitude tests, personality tests, physical ability tests or specific skills tests. Just as with other types of employment screening, these should be job-related and applied equally across the board. Tests should be based on sound scientific validation standards and the employer must be very careful to monitor the results for possible disparate impact on protected groups (e.g., race, sex, age), and not to wittingly or unwittingly disproportionally exclude certain classifications of individuals. These same concerns are applicable to tests given to a pool of candidates for promotion. The disparate impact analysis is important to protect the employer and justify the use of the test(s) in question.

Hiring a new employee is a big decision, and can affect everyone in the workplace “family” for a long time. Accordingly, taking the time to learn about the applicant and consider all relevant information before hiring can go a long way to assisting an employer in making the right hiring decision.


Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.

Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.

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