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Pitfalls Of The Hiring Process – Obtaining Too Much Information Could Be Risky

February 2015
James H. McMackin, III and Allyson B. DiRocco
Delaware Business Times

When things go wrong with an employee, weeks, months or years after an employee is brought on the payroll, hiring managers are frequently called on the carpet for conducting inadequate due diligence before hiring.  Consequently, employers routinely obtain as much information as possible about a candidate during the hiring process; however, that practice could be risky. 

Criminal background checks are routine.  However, the United States Equal Employment Opportunity Commission (“EEOC”) has been cracking down on employers who subject applicants to criminal background checks and take adverse action based upon prior criminal offenses.  The EEOC contends the Civil Rights Act of 1964 prohibits many decisions not to hire employees based upon criminal convictions, because such rule-outs have a disproportionate screening-out effect on minority candidates. Thus, wise employers make sure background screens are job-related and consistent with business necessity.  When an offense is noted on the check, wise employers make individualized assessments into the facts surrounding the offense, the number of offenses, the individual’s age at the time of the conviction or release from prison, evidence that the individual performed similar work post-conviction without incident, employment history before and after the offense, evidence of rehabilitation, character references, and whether the individual is bonded. 

In May 2014, Delaware enacted a “ban the box” law prohibiting certain Delaware public employers from inquiring into a job applicant’s criminal record or history, credit history, or credit score until after a conditional offer of employment.   This is important for public employers to keep in mind.

Employers also commonly research applicants’ social media profiles during the hiring process.  This practice can be risky because there are times when employers may learn too much information during the process.  For example, an employer may view an applicant’s Facebook profile and learn that the individual has familial genetic traits that may cause disabilities, is disabled, is pregnant, does not identify with his or her biological gender, or is in a same-sex relationship.    Once the employer has this knowledge, an applicant may make the argument that a decision not to hire the individual was made on an unlawful basis in violation of state and/or federal laws.  Had the employer never obtained this information, the employer could not be accused of an unlawful motive.  To satisfy this concern, wise employers utilize a third party to conduct social media searches and report only pertinent information, such as whether the applicant’s Facebook profile contains any inappropriate content.

While in theory it is a good practice to research an applicant during the hiring process, sometimes stumbling across the wrong type of information about an applicant can put employers in a precarious position.  Staying consistent and documenting the process for each applicant during the hiring process are key.