Employment Verification

 

Criminal Records

A failure to check criminal records is indefensible when harm is done by an employee and a claim involves negligent hiring. Yet, there is an incongruity in that criminal records should not be a basis for excluding every applicant with a conviction. Part of that is based on the percentage (about 25%) of U.S. citizens who have been convicted of crimes.

The U.S. leads the world in the percentage of people incarcerated or on parole. Roughly 700,000 people are released from prison each year. If opportunities for rehabilitation are to be meaningful and recidivism not an inevitability, jobs must be available to them.

Exclusion of applicants based on criminal history can result in findings of disparate impact against Blacks and Hispanics. Again, disparate impact means that a neutral requirement adversely impacts some applicants based on protected class. For example, African Americans are seven to eight times more likely to be imprisoned than Caucasians.

That does not mean that every denial of a job opportunity based on a criminal record is wrong. It does mean that records should be considered with respect to the job being filled.

Arrests should not be relied on in making employment decisions, as they are merely encounters with law enforcement personnel. Adverse impact is a concern as minorities have many more such encounters than whites.

Credit Histories

The Federal Credit Reporting Act (FCRA) regulates the gathering, sharing, and use of information by employers and consumer reporting agencies. A consumer credit report is defined, in relevant part of the Act, as follows:

The FCRA requires that a prospective employer disclose that a credit report will be requested and obtain the applicant’s consent to do so. Authorizations must be on a separate form. A line or a text box on an application form does not satisfy the requirement.

A credit report that lists delinquencies, foreclosures or bankruptcies can end consideration for any position in which personal finances might be relevant, including many retail positions. Some states have enacted laws prohibiting or limiting the use of such information by employers, though they typically make exceptions when a position requires financial responsibility.

Defenses to Defamation Claims: Consent and Qualified Privilege

It is often stated that “the truth is an absolute defense” to a claim alleging slander or libel.

A qualified privilege extends immunity from liability if certain conditions are met. The law recognizes that communication between former and prospective employers serves an important purpose. It also recognizes that concerns about lawsuits based on minor inaccuracies would stymie the exchange of necessary information. Qualified privilege is, by its own terms, not absolute. It can be lost if an overly broad publication occurs. In other words, communication cannot be offered to people who are not prospective employers seeking a reference about a former employee.

Negligent Referral

Fear of defamation lawsuits prompts some employers to limit references to confirming dates of employment. When a reference that goes beyond those limitations is undertaken, there is guidance for the ways in which both the former and prospective employers should handle it.

When a former employer is giving a referral, negative information should not be withheld. Nor should a reference present a troublesome employee as sainted.

A former employer can be held liable for harm done by an employee if it provides a positive reference for an unfit employee who harms others in the new job. By withholding negative information that is true and relevant or misrepresenting the employee’s performance, the former employer forecloses opportunities for knowledge and foreseeability on the part of the prospective employer.

When referring people for jobs that pose foreseeable harm to others when relevant, negative information is known, requests for information about former employees should not be provided in a selective and misleading manner that conceals known indicators or unfitness.

Caution: when a former employee has a suit alleging discrimination or wrongful termination pending, mention of those actions will likely be considered reprisal for engaging in protected activities. If a former employee has an ongoing case against the former employer, references should not be more negative than the facts warrant.

Verifying Eligibility for Employment: The Immigration and Control Act of 1986

Employers are responsible for verifying that all persons hired have a legal right to be in the U.S. The Immigration and Control Act of 1986 (IRCA) sets forth the requirements. Developments pertaining to immigration and who has a right to work in the U.S. are often politicized and so fluid that discussion of anything but IRCA is perilous.

IRCA sets forth two main requirements:

• All employers are prohibited from knowingly hiring or retaining unauthorized aliens on the job.
• Employers with four or more employees are prohibited from discriminating in hiring or termination decisions, based of national origin and citizenship.

IRCA’s prohibition against discrimination applies to citizens and immigrants authorized to work in the U.S. Employers can prefer U.S. citizens for employment when two candidates are equally qualified. IRCA does not apply to applicants.