Screening New Employees: Part II

Written By: Reid
Dec 01, 2001

The importance of a face to face interview with a job applicant to evaluate their recent past behavior was emphasized in the last web tip. One reason employers are reluctant to ask probing questions during a preemployment interview is the fear of a subsequent law suit. This discussion will focus on legal aspects of preemployment screening and cost-effective strategies in making hiring decisions.

The underlying legal principle applied to areas of proper inquiry during a preemployment interview involves a concept called a Bona Fine Occupational Qualification (BFOQ). In other words, can the employer demonstrate that the information elicited by the question is necessary to assess the applicant's suitability for employment. Any written or verbal question asked of a job applicant in the selection process must satisfy a BFOQ.

It may, therefore, be considered improper to ask the applicant if he rents or owns a home but it would be permissible to ask for the applicant's mailing address since the employer needs to know where to contact the applicant. Certainly it would be improper to ask about the applicant's origin of birth but it is permissible to require proof of being able to legally work in this country (upon being offered a position).

Fundamental to any employment position is a person's integrity, honesty and reliability. Therefore, an applicant who lies on an employment application about being fired from a previous position has demonstrated a lack of integrity. An applicant who acknowledges recent drug use, shoplifting or auto theft indicates not only dishonesty, but potential poor reliability as well. It is a reasonable possibility that an applicant with a propensity for illegal activity risks being caught and arrested and therefore, will not be able to show up for work.

There are a number of federal laws which regulate hiring practices. The longest standing are discrimination laws under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1973 enforced through the Equal Employment Occupation Commission (EEOC). These acts create protected classes of people and prohibit an employer from using race, age, religion or national origin as grounds for disqualifying a job applicant from employment. An employer who does not hire a job applicant from a protected class may be challenged to articulate specific grounds for their not-hire decision. A valid defense for EEOC claims is that the employer utilized a BFOQ in disqualifying a job applicant. An example of this principle is a job applicant's contact with police. It is generally considered discriminatory to ask whether or not an applicant has been arrested for a crime. However it is lawful to ask if the applicant has been convicted of a crime.

In 1988 the Federal government adopted the Employee Polygraph Protection Act. This legislation argues that the polygraph is not a reliable indicator of truth and deception and therefore prohibits most private employers from asking, requesting or requiring a prospective employee from taking a preemployment polygraph examination (or other purported lie-detection device such as a voice stress analyzer). Exempt from this restriction are all government employees and private employers who operate sensitive businesses such as nuclear power plants, drug manufacturing or armed security services. There is also The Americans with Disabilities Act of 1990 (ADA). Preemployment questions relating to the applicant's medical or emotional health are prohibited under the ADA unless the applicant has been offered a position. With respect to illegal drug usage, the act permits employers to only question job applicants about recent drug usage and unsuccessful treatment in a drug rehabilitation program. Recent drug usage has been defined as a period of two years and unsuccessful treatment in a rehabilitation program involves any use of an illegal drug since leaving the treatment.

To protect against discrimination claims it is recommended that employers establish pre-existing objective standards of unacceptable behavior against which all applicants are compared. As an example, an employer may consider a person as unsuitable for employment if the applicant has been fired from a job in the last 5 years, has used any illegal drugs in the last 2 years, has stolen money from employers in the last 5 years or committed a theft crime in the last 7 years. Because the same objective standards are applied to all applicants for a particular position, the employer is in a position to demonstrate that the not hire decision was in no way discriminatory.

Utilizing objective hiring standards in this manner can also decrease the costs of preemployment screening. An employer should first implement the least expensive and time-consuming procedures to pre-screen job applicants. Frequently, this will be a face to face interview designed to verify information on a written application. Our experience indicates that between 25 and 30% of job applicants make disqualifying admissions during an Integrity Interview. This allows the employer to reserve more expensive and time-consuming pre-employment procedures for those remaining applicants who are most likely suitable candidates for the position.

Conversely, it is less cost effective to reverse this process where the employer first spends the time and money to assess an applicant's knowledge, skills and abilities and then objectively evaluates the validity of the written application and the applicant's integrity through a face to face interview. Because the initial assessment tends to be subjective, very few applicants are eliminated. This means that almost all applicants for a position go through the entire extensive screening process. It is much more cost effective to eliminate unqualified applicants at various stages of the screening.

While this web tip presented legal guidelines for preemployment screening, it was designed as an overview of some Federal guidelines regulating preemployment inquires. As such, it is not intended to be all-encompassing.. In addition, there are various state statutes that regulate preemployment inquires. Our best recommendation is to develop a standardized written employment application that satisfies all state and federal guidelines and to have each job applicant complete an application. Further, the first stage of the hiring process should be to verify the information written on that application.

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