What kinds of pre-employment inquiries can be made?

Are questions about protected traits ever permissible?

Protected traits refer to personal characteristics that must not form the basis of an employment decision. Under federal law, these would include race, sex, religion, national origin, age and disability status. State law may protect other traits such as sexual orientation or marital status.

Disability-related pre-employment inquiries are strictly banned by the Americans with Disabilities Act (see ¶27,115 ), but what about the other protected traits? Inquiries about race, sex, religion, national origin, age are not prohibited per se. What is forbidden is basing an employment decision on these traits. Inquiries along these lines are problematic, however, because the courts have developed a system that allows discrimination to be inferred. Therefore, you must be careful to avoid even the appearance of discriminatory decision-making.

This seemingly creates a dilemma for employers who must keep applicant flow records and assess the impact of their selection procedures. See ¶11,610 regarding when and how to keep applicant flow data.

Can I look into an applicant’s background?

Checking up on an applicant may involve two distinct areas: checking references provided by the applicant and conducting a background investigation. In both areas, you need to act in a consistent manner.

References provided by applicant. As discussed in ¶27,030 , How to check references from former employers, past employers can alert you to whether an applicant has engaged in misconduct while on the job, but they are sometimes afraid to do so because it could lead to defamation or privacy claims.

Personal references tend to result in favorable reports since the reference has been hand-picked by the applicant-they should not be considered as entirely objective. Or they may be prominent people an applicant has listed in hopes of impressing you, but who don't really know the applicant well enough to help you assess the person.

Yet if an applicant indicates that he or she has been living in an area for a long time, but can produce no local references, this may be a warning flag about the applicant.

Consumer reporting agencies. A credit check is generally appropriate for positions involving access to money or trustworthiness. It can also reveal an applicant's wage history and prior employers. An investigative consumer report covers more than financial data; character, general reputation and personal characteristics might be included as well.

Federal consumer credit laws restrict the use of consumer reports, however. A permissible purpose is required-and hiring is such a purpose. Applicants must be notified in writing that a report may be required and written authorization from the applicant must be obtained. Information from the report cannot be used in violation of equal employment opportunity laws. Also, before an adverse action-like a refusal to hire-can be based on a report, the applicant must be furnished with a copy of the report and a summary of consumer rights under the law.

State laws may provide additional restrictions on the use of credit or consumer reports.

Criminal records. Asking about or using arrest records as hiring criteria may have an adverse impact on minorities, if minorities are arrested in percentages higher than their percentage representation in the population as a whole. Remember, arrest is not conviction. As an employer, it would be rare that you'd be able to justify making broad inquiries about arrests.

The Equal Employment Opportunity Commission, the agency responsible for enforcing most federal discrimination laws, takes the position that an employer must determine whether an applicant actually committed the alleged crime before it can reject an applicant on the basis of an arrest record. This is pretty tough to do. Moreover, employers should refer to state and local laws with respect to whether they can ever inquire about an applicant's arrest record.

Using an applicant's conviction record is easier to justify. In either case, the decision to hire must be based on business necessity and job-relatedness. So consider the nature and gravity of the offense, time elapsed since the occurrence, the nature of the job in question, and any evidence of rehabilitation. For example, a conviction for marijuana possession 20 years ago with no further criminal history may not be reason to reject an applicant, while a more recent conviction of theft may be.

An applicant's criminal history should be disclosed only to persons with a clearly demonstrable, job-related need to know. Make sure any such information you obtain during the hiring process isn't made available to others, even inadvertently.

There are situations when a criminal record check is not only desirable, but also required by law-notably in law enforcement, security and day care work. See ¶27,150 How and when should criminal background checks be made? for additional information about checking into criminal history. Many states have laws governing the use of criminal record checks, so work with your human resources department to ensure that you know the requirements for the job in question. See State Laws for further details on state criminal background check laws.

Driving records. A check of driving records is useful when filling positions that require driving. Requiring all employees to have a valid drivers' license isn't job-related, however, if the position does not require driving. Treat inquiries into driving arrests and convictions the same as other arrests and convictions.

Driving records are also useful because the identifying information on drivers' licenses-full name, date of birth, address, and physical description-is helpful in verifying the identity of the applicant. But be aware that some disabilities may be revealed by a check of drivers' license information.

Educational records. Federal law provides that school transcripts, recommendations, disciplinary records and information about financial assistance are confidential and cannot be released without authorization. Directory information, which includes name, address, dates of attendance, degrees earned, and activities, may be released by a school unless the student has otherwise given written notice. However, asking for dates attended might be viewed as an indirect and unlawful means of asking an applicant's age.

Medical records. Under the Americans with Disabilities Act, employers may not inquire into an applicant's physical or psychological disabilities until after a conditional job offer is made. After a job offer is made, an employer can conduct examinations only if the examinations are required of all applicants for that position.

Because of problems associated with AIDS and genetic testing, many states have laws governing the confidentiality of that information. For more information, see ¶61,359 , Can your company conduct genetic tests on applicants and employees?.

Military service records. Federal law allows the release of military service records only under very limited circumstances. Available information is generally limited to name, rank, salary, duty assignments and status, and awards.