By Michael Cormier
How you investigate, what you investigate, when to do certain things—all of these are dictated these days by law, at least in part. Common sense only goes so far. These days, you need to know how to go about things as much as anything else.
In my last post I talked about the potential legal implications of employee investigations and hiring decisions based on them. The aim was to raise awareness about the pitfalls hiring managers may encounter if they only know statutes, without understanding their underlying expectations.
Sound hiring decisions still begin with a thorough background investigation, and it’s always well advised to consult an expert in the field, like The Hire Authority (508-230-5901; www.hireauth.com). But once a thorough and accurate report is obtained, knowing how to use that information without violating federal and state laws is just as important.
To that end, in my next two posts I would like to delve into some of the more important laws affecting how employers are expected to go about hiring—and rejecting—job candidates.
To understand present day regulation of hiring, you need to go back to the late 1800s. With the industrial boom of that era came the perceived need to protect a growing labor force. The result was labor laws restricting hours and conditions, workers’ compensation laws, safety regulations—all of which were passed in the late-nineteenth to early twentieth centuries. From this era, both state and federal government grew confident in their ability to affect life in the workplace for the better.
After World War II the focus shifted to equality in employment, including fair hiring practices. This culminated in the Civil Rights Act of the1960s, and later the Americans with Disabilities Act, passed in 1990. All of these federal Acts have sub-parts and offshoots that directly affect hiring and firing. And the states have their own laws, some of which are even more restrictive than the federal versions.
Let’s take a look at three of the major federal laws passed in the last half-century that affect hiring the most:
Title VII of the Civil Rights Act, 1964
Passed during the progressive (or not, depending on your point of view) era of the mid-sixties, the Civil Rights Act sought to combat discrimination in a number of venues. Section 2000e(2) of Title VII dealt with the workplace, providing a blanket ban of discrimination based on race, color, religion, sex, or national origin. Other classes such as age were later added by separate legislation. What’s important to remember here is that such a blanket ban on discrimination means actions can be interpreted as discriminatory even when those actions were entirely innocent. This will be explored in more detail in my next post.
Americans with Disabilities Act (ADA), 1990
The Americans with Disabilities Act was created to protect one group not specifically covered in the Civil Rights Act: people with real, or even perceived, disabilities. Put simply, the ADA protects against discrimination based on physical or mental handicap. But that’s not where it stops. The ADA requires that accommodations be made in the workplace wherever possible. This means management must evaluate every individual job candidate for their ability to perform the job with reasonable adjustments and restrictions.
Fair Credit Reporting Act (FCRA)
With the growth of credit in the latter half of the twentieth century, the Fair Credit Reporting Act was passed in 1970 to assure that credit would be extended fairly to all deserving applicants. It was also passed to govern such things as collection activities and the gathering and disseminating of credit information. Therefore, hiring decisions based on credit history must comply with the FCRA.
Taken together, all of these statutes place the onus on hiring personnel to follow certain procedures and make hiring decisions that not only follow the letter of the law, but the spirit of the law. This means that, for every viable job candidate rejected, the decision-maker should always be asking herself if everything possible was done to assure that the rejection was done in good faith.
Yet it doesn’t end there. What information is used, and how it is weighed in the final decision, must be considered. In other words, decision makers have to analyze and evaluate, not just follow the black letter of the law. Otherwise, it could still be perceived that a certain candidate or candidates were discriminated against.
In my next post I will dig a little deeper into the implications of each statute, and discuss recent FTC and EEOC guidelines meant to explain what’s expected from hiring personnel.
For now, as a general and practical consideration, it should be emphasized that background investigations and the information they gather are more important than ever. Hiring the right investigation firm, like The Hire Authority (508-230-5901; www.hireauth.com) for that investigation is the foundation for confident and legal hiring decisions.
The foregoing should not be construed as legal advice. Employers should always consult their own legal counsel for advice on labor and employment matters.