Top Tricky Hiring Issues- And How To Deal With Them

Posted by on August 11, 2009 in Legal Matters for Business [ 0 Comments ]

Small Business Background ChecksHere’s some good news: small businesses are adding more employees.  One hiring index tracking small business trends reported a 21-point increase over June numbers for the month of July, indicating that the size of the small business workforce is actually growing, despite some other grim economic predictions. That small businesses are hiring isn’t all great, though: hiring a new employee can be a process fraught with tough legal and ethical considerations- background checks, online research, and employment law compliance can all be difficult issues to deal with.  Here are a few sticky topics that can come up when faced with a hiring decision- and how to deal with them.

Background Checks and Pre-Employment Screenings
The Federal Fair Credit Reporting Act (FCRA) requires a prospective employer to gain an applicant’s consent initiating a “consumer report” on an individual.  A consumer report can encompass traditional background check information and much more:  the FRCA defines a report as “…any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living….” If you plan to use an outsourced employment screening company or perform a criminal background check, you definitely need the applicant’s consent first.

Social Media Searches
Referencing Facebook, MySpace, and yes, LinkedIn profiles could also be considered a background search for which you need the prospective employee’s consent.  Social media searches are a potential legal minefield because they can call information to your attention that isn’t relevant to the job or is otherwise impermissible to consider- a social media search can reveal a person’s age, religious affiliation, or marital status- none of which can be considered a factor in a hiring decision.  Of course, this doesn’t mean that a prospective employee’s online proclivities are completely off-limits.  If you must search, ask an employee who’s not making the hiring decision to do it, or better yet, notify the prospect that you may browse their profile.  Since no clear legal precedent exists so far on the legality of making decisions based on such searches, it’s better to be safe than sorry.

Work Eligibility Regulations
Some industries have specific hiring requirements- for example, long-haul truckers need a specific drivers license, and medical professionals need certain accreditations.  Some industries also require business owners to perform a criminal background check or verify eligibility to work in the US.  It’s important to make sure you have adequate time to perform these procedures when you’re scheduling interviews with prospects.  Make sure you use a reputable source, such as eVerify, to check information (they have a phone system in place that allows you to verify information easily).

Hiring Discrimination Laws
Worse than hiring the wrong applicant can be not hiring someone for the wrong reason.  Among other regulations, the ADA prohibits employers from using medical history or present conditions to disqualify a recruit (technically, you’re not allowed access to medical information at all, unless it relates specifically to the position), the Federal Bankruptcy act offers discrimination protection for applicants who have declared bankruptcy, and other federal and state laws prohibit discrimination based on other factors.  The EEOC website presents an outline of federal regulations, and state labor laws can be researched individually.

Hiring can be a tough process even without all of the regulatory and legal issues to deal with.  Keeping up to date on the procedures that govern your industry can take time, but it’s worth it- whether you hire an employee screening company to perform background checks or verify employee references yourself, take the time to research your responsibilities.  It is possible to protect an applicant’s right to privacy while still getting the information you need to make a fair hiring decision.


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