I had the good fortune to speak “virtually” to HR professionals across the US last week about key preemployment screening and testing trends as part of the XpertHR webinar series. If you missed my presentation, the good news is it’s not too late to hear the talk in its entirety on xperthr.com. But for those who prefer the Cliffs Notes version, here are some of the top screening trends affecting employers during the recruiting and hiring process.
1. Ban the Box
This phrase refers to the “box” on job applications that many employers ask applicants to check off if they have ever been convicted of a crime. There has been a growing movement to ban the use of this criminal history question at the initial application stage because of fears it could act as an automatic bar to employment even for qualified, rehabilitated candidates. However, this ban the box legislation does not preclude employers from conducting background checks later in the hiring process.
2. EEOC Enforcement Efforts
The Equal Employment Opportunity Commission (EEOC) has stepped up its enforcement efforts regarding the use of criminal records for employment purposes, and sued some employers for what it viewed as discriminatory background checks. The EEOC is concerned that these records tend to disproportionately affect minority job applicants.
As a result, the agency says that an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, may violate Title VII of the Civil Rights Act. In particular, the EEOC has stated that an employer’s neutral policy of automatically excluding applicants from consideration based on certain criminal conduct may violate the law if it’s not job related and consistent with business necessity.
3. Credit Check Limitations
Some employers not only rely on criminal background checks, but also check the credit history of applicants as well. However, unless a credit check is job-related or a business necessity, it may not be a good practice for employers to engage in this practice. In fact, 10 states have significantly limited the instances in which employers may lawfully conduct credit checks. Others have legislation in the works to follow their lead.
Examples where a credit history check generally will be considered to be job related include positions with:
- Financial services;
- Federally-insured financial institutions;
- Managerial responsibility; or
- Handling sensitive data.
4. Drug Testing
Employers have more leeway when drug testing job applicants as opposed to employees. These tests generally may be requested even prior to making a job offer without running afoul of federal law. However, interviewers should steer clear of interview questions asking about past drug use since addiction is a covered disability under the Americans with Disabilities Act (ADA).
A hot US trend in this area has been the rapid increase in states legalizing medical marijuana use. Despite this clear trend, the courts have consistently held that medical marijuana use does not excuse a failed drug test. Thus, an employer need not toss its drug testing policy into the dustbin if hiring in one of these states.
Please do get in touch to share your most challenging screening issue when evaluating potential employees by leaving a comment below.