HRER501:

Overview

Last week, we considered what comprises an employment relationship. This week, we review how employment relationships begin as part of a study that will take us to problems that arise during employment – from the perspectives of both the employee and the employer – to an eventual review of how the relationship ends.

Work is a significant part of most lives. People start jobs or businesses with expectations, hopes and goals. Some careers go smoothly. Others do not. No matter how the trajectory develops, finding a job requires knowledge that one is available. Forms of notice include word-of-mouth, internal postings, online sites, professional publications, headhunters, newspapers, social media, college placement services, job fairs, employment agencies, union hiring halls, bulletin boards, and the low-tech sign in a window that reads: HELP WANTED – APPLY WITHIN. Whether the position is available at IBM, GM, the Department of Veterans Affairs, or a 2-person diner, formation of the relationship between an employer and an employee requires notice that a position is available; from the employer, and an indication of interest; an application, from a prospective employee.

Despite good intentions on the part of most, all methods of recruitment have the potential to be what the text refers to as “an instrument of discrimination.” This lesson deals with the efforts to link applicants with an available position and the pitfalls that can be encountered using some methods despite no intent to discriminate. Examples will include methods of recruitment that restrict access based on protected class characteristics (including what defines protected classes), limitations on inquiries concerning medical conditions, and the controversies surrounding employer access to and reliance on social media activity.

We will also review affirmative action programs (AAPS) in terms of what an employer must do to establish a plan that conforms with Title VII and the myriad challenges that can result.

We will also learn the standards for respondeat superior; let the master answer for employee wrongdoing committed within the scope of duties, and the extension of liability for acts not within the scope of duties but foreseeable if background checks had been conducted, which is negligent hiring.

We will also review problems that can arise based on employer promises, resulting in breaches of implied or written contracts, and employee misrepresentation of qualification or credentials. We will consider the distinction between arrests and convictions in criminal histories, learn about negligent referrals, reliance on credit reports, tort actions applicants can file against a company for defamation, requirements under the Immigration Reform and Control Act (IRCA) concerning eligibility to work in the U.S., and limitations on accessing an applicant’s social media sites.

We will also consider the wide expanse of tests employers rely on, including those devised to identify drug use, honesty, personality traits, medical conditions, genetics, intelligence or physical ability to perform a job.

Lastly, we will study the requirements and circumstances when drug testing is permissible. We will learn about medical examinations and their use in making hiring decisions, ADA restrictions on such exams, the burgeoning area of genetic testing, the limits on polygraph exams per the Employee Polygraph Protection Act, scored tests of intelligence, knowledge and ability and EEOC guidance concerning disparate impact, job relatedness, business necessity and accommodation of disabled persons when tests are administered.

Learning Objectives

At the end of this week, you will be able to:

• Identify and analyze the concepts of negligent hiring and respondeat superior.
• Evaluate discrimination issues that arise from recruiting processes 
• Analyze the validity of affirmative action programs.

Readings

Refer to the course schedule for details on this week's readings.

Recruitment Methods

There are many ways in which employers recruit potential employees. Few of the methods are inherently discriminatory. However, results and a review of why they occur are necessary for determination. Because of the potential, employers should use multiple recruitment outlets to lessen the potential exclusionary effects of one method.

For example, an ad in the town flier for a community that is predominantly Caucasian is not inherently discriminatory. It is likely to result in a recruitment pool that is mostly Caucasian. The recruitment effort should include a method that reaches a more diverse group. If that is not done, reliance on the local town flier could be considered an attempt to exclude minorities.

An advertisement for RNs, is unlikely to attract many male applicants as 87.7% are female.  Like the previous example, this is not intentionally discriminatory, though it results in a predominantly female recruitment pool.  The outcome is not due to discriminatory practices, but rather the nature of a field like nursing, where female representation is dominant. There are other professions where there is limited representation for some ethnic groups, such as neurosurgeons and attorneys, and others where one gender is dominant, such as plumbers and engineers. We will consider statistics and their use in cases alleging discrimination.

 

Want Ads and Job Announcements

When a job is available, its availability, description and requirements must be made known to prospective applicants. Previously, employers were heavily reliant on newspapers, bulletin boards and trade publications to advertise a position. Increasingly, the Internet is used. Sites such as LinkedIn, ZipRecruiter, and CareerBuilder cannibalize the offerings from other sites and even reverse the process by targeting people who might be qualified or interested.

The federal government uses USAJOBS, while states and municipalities have their own sites. The federal government's process of opening a position to a wider recruitment pool than the department in which it exists reinforces the value of using multiple sources. Ads limited to a bulletin board in a plant where most of the workers are of one ethnicity will likely result in applicants of the same ethnicity.

Decades ago, positions in auto plants and at utility companies were made known to only those already working there - which resulted in multiple generations of employees from the same families. That equates to being of the same ethnicity. Such practices are exclusionary.

EEOC requirements concerning job postings include:

It shall be an unlawful practice for an employer . . . to print or publish or cause to be printed any notice or advertisement related to employment . . . indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin. (42 U.S.C.S. 2000e - 3(b) (2017))

The U.S. is robust in its protections based on protected classes. Here, want ads must be neutral. Gender-based words such as waitress or seamstress should not be used. A requirement for "young go-getters" would not pass review by the EEOC. "Recent college grad" can be problematical, though some positions target those groups - such as associates at law firms. Further, some "recent college grads" are 40+. The Age Discrimination in Employment Act does not permit disparate impact claims by applicants.

In the EU, specifications concerning gender or age preference sometimes appear in ads and are legal. Also, there are mandatory retirement ages in most EU countries. In Hong Kong China, an ad indicating that applicants must be Chinese, female, and 21-28 is acceptable.

The most important thing is that wording of ads must be neutral with no indication of preference based on age, gender, ethnicity, citizenship or national origin.

 

Employment Agencies

Employment agencies are covered by antidiscrimination laws and are expressly prohibited from advertising for positions or making referrals in a discriminatory manner. It is naïve to hold that some customers served by employment agencies will not make preferences known or that none will accede to those demands. It is nonetheless illegal per the EEOC.

EEOC enforcement cases against employment agencies have involved code terms for applicants over 40 and refusals to consider African American applicants. Foreign-based companies can limit certain executive positions to their own ethnicities per international trade agreements, but they cannot discriminate when filling other positions.

Aside from those limited exceptions, employment agencies cannot defend against discriminatory practices based on the preferences of their customers. Nor can agencies lawfully serve as filters for applicants based on discriminatory preferences.

 

Nepotism and Word-of-Mouth Recruiting

Civil service laws prohibit nepotism, which can be defined as favoring friends, relatives, or associates when hiring. It is discouraged by many large private-sector employers, though not uncommon among smaller employers.

The reasons for the practice are not difficult to comprehend. A position is available; a relative needs a job. Presto! No recruiting costs are incurred and some knowledge about the work ethic of the family is had. The problem is that new hires from the same family as people already working for an employer will be similar - if not identical - as to protected class characteristics. Most often, that has worked against inclusion of African Americans in a workforce.

Word-of-mouth is a process where knowledge about job openings is disseminated by current employees. That system limits the recruitment pool to family and friends. As with nepotism, it excludes members of other protected classes and may be considered a discriminatory form of recruiting.

Unions that require apprentices or new members to be sponsored can have the same outcomes if the membership is not diverse.

Unless the demographics of a region are skewed or diversity is difficult to achieve based on the percentages of applicants qualified for a position, outcomes say it all. Absent those factors, a lack of diversity in a workforce is a function of recruiting methods that warrant review.

 

Enlisting Day Laborers

Day laborers assemble in parking lots near stores like Home Depot and Lowe’s or on street corners. Most big cities have such a place. The services sought are usually reliant on a proverbial strong back.

Undocumented immigrants not authorized to work in the U.S. are often among those gathered. Many of the arrangements work out fine; however, others result in no payment, dangerous work conditions, no breaks, abuse and untreated injuries. Obviously, the system is informal. Many of the workers are reticent to seek redress because of their illegal status. Some have outstanding warrants. Some mistrust government officials or police officers.

The U.S. Constitution prohibits government restrictions on the rights of people to gather, however, municipalities have attempted to limit assemblages of people looking for day work. Is the cure worse than the disease? By eliminating gathering places, the ability to earn a few dollars is also taken. That does not excuse the overarching factors that make day labor an option for some. Until those factors are resolved, it replaces one mean option with another.

An example of a situation in which a city tried to limit assemblies of people is in the upscale city of Danbury, Connecticut. A cruel stunt was put into play, where a police officer offered work to a group of eight day laborers, got them in a van, and took them to the station to be arrested. $400,000 was paid as a result of this event.

Proving Discrimination in Employment: Statistical Evidence

Many trials involving cases alleging discrimination feature testimony from experts who interpret statistical data reflecting demographics, pools of qualified applicants, and whatever anyone can interpret based on numbers. Experts for plaintiffs and defendants often interpret the same data very differently.

Why the importance of statistical evidence? As previously noted, outcomes say it all. A problem encountered by many who allege discrimination is framing an argument based on outcomes alone. The EEOC is often the proponent in cases alleging discriminatory recruitment practices because those impacted by them are unaware that something was amiss. 

It is axiomatic that output is a function of input. In other words, a lack of diversity is likely the product of a recruiting effort that produced that outcome. There can be exceptions based on demographics and qualified applicants for a particular position in a relevant labor market. Those situations do not apply to many geographic areas or most jobs that become available.

As already noted, 87.7 % of RNs are women. Women comprise 3.5% of licensed plumbers. A lack of applications from males for RN positions or women for jobs as plumbers would not be, without more, evidence of discriminatory recruiting practices. Those situations are not germane to jobs that call for the general skills many possess. If applicant pools lack diversity, employers should consider adjusting the geographic scope of their recruiting effort, based on what is reasonable or attainable.

Affirmative Action

The text defines affirmative action as "those actions appropriate to overcome the effects of past or present practices, policies or other barriers to equal employment opportunity." How affirmative action plans (AAPs) are implemented is a much-embattled undertaking with employment opportunities sometimes dependent on the pipeline provided by colleges and universities.

When percentages, by protected class, of those employed versus those qualified for a position is suspect, an AAP can rectify the matter. When the percentages of qualified applicants, by protected class, are not in line with demographics of a region, the goal should be devised to increase representation.

Basic requirements for employer-initiated AAPs include a formal, written plan devised to improve employment opportunities of groups that, historically, have been victims of discrimination: women, African Americans, Latinos, Native Americans, Asians, Pacific Islanders, disabled persons, and some veterans. Most plans are voluntary undertakings.

Employers that sell goods or services to the federal government worth at least $10,000 must have a non-discrimination clause in their contracts per Executive Order 11246. The Order requires that contractors comply with Title VII. Many states have like requirements.

Where EO 11246 provides goals above those already required is, when there are 50 or more employees and a contract worth at least $50,000, a written affirmative action plan must be developed. The EO also provides enhanced protections for veterans with service-connected disabilities, those who were in combat, and those who were discharged within the last 36 months.

Though most employer-initiated AAPs are voluntary undertakings, courts can order an AAP as a remedy. Some cases end with a settlement - a consent decree - where an employer agrees to develop and implement an AAP. In those cases, "punishing" an employer for past violations is one part of the remedy. In others, an AAP, is devised to prevent future violations and ameliorate damage that has already been done.

EEOC Guidelines for an AAP

EEOC guidelines state that plans must contain three broad categories: a reasonable self-analysis, a reasonable basis for the AAP, and reasonable actions.

A reasonable self-analysis requires that employers evaluate whether its employment practices do, or tend to, exclude, disadvantage, restrict, or result in adverse impact or disparate treatment of previously excluded or protected groups, or leave uncorrected the effects of prior discrimination, and if so, determine why? The analysis should include demographics of a region and by job categories.

A reasonable basis for affirmative action requires underutilization. The latter means when the percentage of women or persons of color in one or more of an employer's job categories is smaller than the percentage of those with the necessary skills for that type of employment. The basis should include a comparison of the demographics of an existing workforce with those who have the requisite skills in a reasonable recruitment area. If the self-analysis establishes that there is underutilization by protected class, actions undertaken must be reasonable. Goals are necessary and must be reasonably attainable through a good faith effort. Preferences based on protected class are not permissible. Nor are quotas.

Blind adherence to quotas would provide the quickest path to correction. It would also risk reverse discrimination. Recommendations generally focus on expanding the recruitment pool to make opportunities known.

AAPs must have a projected end and cannot embrace a rapid, overnight effort at correction of a situation that likely developed over decades.

We will study AAPs in greater depth in a subsequent lesson. The focus in this lesson is pre-hire and recruitment activities: how a workforce comes together.

Recruiting Foreign Nationals for U.S. Employment 

The range of positions filled by foreign nationals is far reaching, ranging from professional sports, to tech, agriculture, seasonal resorts, engineers and health care professionals. Often, employment necessitates application for a visa. Without immigration and visas, many jobs in the U.S. would go unfilled – from harvesting crops to surgeons in operating rooms. In the next section we will look more into the details of visa programs that enable foreign nationals to work in the U.S. 

 

Visa Programs 

Hospitals, engineering firms and tech businesses often have someone in HR who handles visa matters. The process requires vigilance and follow-ups. Recruiting, staffing and employee expectations depend on the process being done right. 

Foreign nationals that do not have permanent resident status; a green card, must obtain a visa that will permit them to work in the U.S. The type of work involved, and qualifications define most of the categories, which are provided in the text.  

 

Labor Trafficking

Labor trafficking is defined as “the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of obtaining his or her labor or services through the uses of force, fraud, or coercion that subjects the person to involuntary servitude, peonage, debt bondage, or slavery. Sectors where the practice is most common include agriculture, domestic help, traveling sales crews, the garment industry, nail salons and the beauty industry, janitorial services, the travel and service industries, fairs and carnivals and peddling and begging.

Some situations also involve sex trafficking, which is more common than labor trafficking in the U.S.

Common elements of the relationships involve recruitment, false promises, indebtedness, isolation, dependence of the employer and abuse. Many workers are undocumented and fearful of reprisal if they seek help, while some enter the U.S. legally through visa programs. Typically, recruitment fees, transportation costs, charges for lodging and interest on the accumulating debt make it impossible for the victim to make headway and escape. Prosecution is difficult as there are many layers of operators across national boundaries. Describing some as fly-by-night operations would be hyperbole in their favor.

Criminal codes prohibit labor and sex trafficking: the Trafficking Victims Protection Act provides criminal penalties and civil remedies. Many organizations attempt to track and prevent human trafficking. Resolution is elusive so long as there are countries where people are without opportunities and willing to accept any type of job, under any condition, to support their families.

The beneficiaries of human trafficking are participants in the private sector, and businesses must play a part in detection and deterrence. The U.S. is not among the leaders in providing people for exploitation or relying on them for services. The precise scope of the problem is unknown as the hidden nature of the crimes, challenges in identifying victims, and barriers to sharing of information among various stakeholders make it difficult to assess.

The Application Process

More rules and restrictions apply to the application process than one may think. Employers are free to decide whether applications will be accepted or retained when no positions are available. However, there are requirements when an application is submitted for a position that is available and how long they will be accepted and retained. The main concern is to avoid disparate treatment by adhering to a consistent policy that applies to all. No one should be discouraged from applying.

Applications and other records produced in the recruiting process must be kept for at least one year from the date when a hiring decision was made. When a complaint alleging discrimination is filed, records must be retained until there has been a final disposition. Records related to people hired must be retained throughout their employment and for at least one year thereafter. (29 C.F.R. 1602.14 (2017))

What defines an applicant? When does someone staring at a HELP WANTED sign in the window of that two-person diner mentioned earlier go from a passerby to an applicant? The federal government provides a broad definition that includes everything from completing an application to making interest known by other means. That might mean a nod from that person reading the sign at the diner.

When someone voluntarily withdraws their application, formally or informally, they are no longer an applicant. (44 F.R. 11998 (March 2, 1978))

Use of the Internet for recruiting and acceptance of applications has prompted employer concerns about retention practices and requirements. A definition applying to general circumstances has yet to be issued.

Throughout the application process there is much information shared between the employer and potential candidates. This requires attention to be mindful of these interactions and information that can be given as a result.

 

Protected Classes

Some applicants share a lot of information in applications and during interviews, such as mentioning that they are pregnant, have a bad back, are planning to start a family, are married or in the process of a divorce. Employers must ignore the TMI (too much information) factor in making decisions about hiring. Where they must be proactive is being vigilant about preemployment inquiries concerning protected class characteristics. Things to keep in mind include queries about protected class characteristics, uniform criteria for applicants, and avoidance of questions that have a high probability of disparate impact.

What can result from inquiries that appear to target protected classes is that it has the potential to make an unsuccessful candidate suspicious of the employer’s motives and can provide direct or circumstantial evidence in support of a finding of discrimination.

 

Medical Inquiries

The Americans with Disabilities Act (ADA) prohibits inquiries about disabilities prior to extending a conditional offer of employment. When a conditional offer is extended, an employer can ask about restrictions or limitations on the ability to perform the required duties. A medical exam can be conducted, if warranted. Then, the consideration entails whether the applicant can perform the duties of the position with reasonable accommodation.

Offers are "conditional" based satisfactory results of a medical exam – excluding genetic tests. When disabilities are at issue, employers cannot discriminate against qualified, disabled persons who can perform the essential functions of the position, with or without reasonable accommodation.

 

Social Media and Recruitment

Accessing social media sites to learn more about an applicant than what is curated in a resume is commonplace with some employers. A reversal of the practice is unlikely.

A problem inherent with accessing social media sites is that information about protected class characteristics – including race, gender, age, pregnancy and religious beliefs – can become known at a time when applications are screened, and applicants are sometimes eliminated. Reasons can become suspect. Recommendations for avoiding that include outsourcing of checking social media sites. Many employers outsource background checks. The process provides a shield between the employer and social media sites where it might learn about protected class characteristics.

The text indicates that the frequency of employers demanding login access to social media sites is disputed. Whether fact, fiction, or overstated, 21 states have enacted laws limiting employer access to the social media accounts of employees and applicants. More are certain to follow.

Employers should exercise caution, and job applicants should be aware that the Internet is a wide-open, vast place where anything is easily discoverable. Search with discretion and good purpose. Post with an awareness that the Internet is not like the diary of old that can be locked away.

 

Recruiter and Applicant Accountability

 

Statements by Employers

Recruitment includes attempts to persuade candidates to accept a job offer: a wooing process. Promises concerning promotions, pay increases or working conditions can provide a basis for legal action involving misrepresentation, breach of contract (implicit, implied or written), and civil fraud.

Fraud requires that a person has been persuaded to accept a position based on misrepresentations such as promises of compensation, payment of moving expenses or real estate commissions and anything that would induce an applicant to accept an offer and end their association with another employer.

Statements by Employees

Embellishments and resumes are symbiotic. Few downplay their qualifications when seeking work. The situation differs when applicants falsify their qualifications or omit material information.

Courts rarely make findings of discrimination when an employer has a consistently enforced policy of disqualifying applicants who fabricate or omit material information and provide notice – usually on the application form.

Employers that discover a falsification or omission subsequent to hiring will generally be able to defend against any claim of discrimination so long as they have a consistently enforced policy requiring applicants to provide complete and truthful information. Falsifications and omissions must involve material matters. Trivialities such as slight variations in dates will not provide a defense when actions alleging discrimination have been filed.

BFOQ Defense

 

Facially Discriminatory Policies/Practices: BFOQ

Making an employee decision can be difficult and must be done with an awareness about various concepts and provisions that prevent discrimination and promote equal opportunities. There are two things to consider within the area of employment law that address this: Disparate treatment and bona fide occupational qualification (BFOQ).

Making an employment decision based on the protected class characteristic of a candidate is called disparate treatment.

An employer defense for a facially discriminatory requirement is called a bona fide occupational requirement (BFOQ).

Title VII of the Civil Rights Act and the Age Discrimination in Employment Act require that a BFOQ defense (religion, sex, or national origin) on bona fide occupational qualification “reasonably necessary to the normal operation of a particular business or enterprise. Regardless of alleged need, the BFOQ defense is not available for policies that discriminate based on race or color.

“Reasonably necessary” can be misinterpreted as a loose, general requirement. A BFOQ must be defended as job-related and consistent with business necessity. Customer preferences that would eliminate some protected classes are not a basis for a BFOQ. Rather, the requirement is that, without the BFOQ, the business would be undermined.

Grounds for Recognizing BFOQs

Courts have recognized three general grounds for establishing BFOQs: authenticity, public safety, and privacy. These are justifications that can potentially support a business’s need to discriminate based on certain protected characteristics in specific circumstances.

Public safety BFOQs must be defensible because particular protected class characteristics are necessary to protect others. Fitness or strength requirements are example.

Age restrictions and mandatory retirement can be BFOQs if employers establish that the risks posed by older employees are substantial and that more individualized means (i.e., regular medical exams) of identifying risks are not feasible. Examples include commercial airline pilots, whose mandatory retirement age is 65, and FBI Field Agents, who must retire at 57 with extensions to 60 if approved by the Director.

Hiring: Subjective Criteria

Standardized and performance-based interviews sometimes stray from scripts because interviewers are distracted by a response they did not expect and, as all know, some interviewees are unpredictable, interesting or garrulous. A foolproof repellant to subjectivity does not exist. Some positions are filled based on test scores. Even then, is the test entirely objective?

Subjective criteria based on interviews includes appearance, assessments of motivation, “chemistry” and likability. Subjective criteria rely heavily on intuition, feelings and gut-reactions rather than systemic observations and measurements. Nearly all offers are based on some amount of subjectivity. Most work out. A downside is that they can be viewed as neutral requirements that have discriminatory effects.

Test scores can be challenged based on disparate impact. If the acceptance rate for a position is skewed based on protected class, it would be sufficient to establish a prima facie case alleging disparate impact.

Subjective claims about an interviewee not being a good fit or having a poor attitude can result in claims of discrimination. It is not the role of courts to second-guess employment decisions, but they will delve into whether an employer’s decisions were the true reason for an employment decision. Employers are advised to use objective criteria whenever it is feasible.

Interviews and Background Checks

 

Interviews

Few jobs are filled without an interview, whether by phone, Internet or in person. Staffing experts recommend that interviews be structured and consistent because it provides both legal and practical benefits for employers. On the legal side, it provides specific judgments about interview performance based on a consistent method. On the practical side, it benefits the employer with presumably better selections devoid of interviewer bias.

Most interviewers have received advice about not hiring themselves by indulging in the comfortable familiarity of like traits. Or avoiding inherent bias, which is an unconscious favoritism toward or prejudice against people of certain ethnicities or gender. Worse is overt bias, which is bias that is conscious and intentional.

Though judicial reviews of interviews in cases alleging discrimination are also unavoidably subjective, diverse committees, and identical questions with performance-based scoring can make the subjective part of the process more objective.

The goal of most applicants is to wow the interviewer or committee. The goal of the interviewer or committee is to determine if the applicant will be a good fit for the employer and able to perform the duties of the job. Free flowing, give-and-take conversation is tempting. Intuition controls. Many take those routes during interviews. When things work out and no one is unhappy, all is well. When someone contests the outcome, subjective processes are harder to defend. Keep in mind that a complaint about the process does not automatically convert to the unsuccessful applicant being the best candidate as their views are likely more subjective than those of anyone that contributed to the decision.

Background Checks

When applicants make the transition to candidates, employers seek enough information to determine if they should advance to the stage of receiving an offer. It is a significant decision, whether it involves the waitperson slot in that two-person diner mentioned a while back or the CEO of a multinational corporation. Most of the positions available and filled fall between those extremes. Processes equal to the requirements of a position are advised.

Background checks are used to verify information provided by candidates and to determine if disqualifying factors exist. Sources and methods might entail checking past employment and military records, verifying degrees or licenses, checking criminal records or snooping on social media sites.

Those processes are primarily undertaken to determine qualifications and suitability. When those tasks are completed, a concern, dependent on the position, is potential employer liability for the harmful acts of the person hired.

Employer Responsibility and Liability for Employee Wrongdoing

 

Employer Responsibility for Employee Wrongdoing: Respondeat Superior

The common law doctrine of respondeat superior (“let the master answer”) makes employers directly liable for harm caused by others acting within the scope of their employment. Scope of employment means actions that relate to the kind of work someone was hired to perform; that take place substantially within the workplace during work hours; and that serve, at least partially, the interests of the employer. Let's look at a few examples.

Let’s say a stockperson drops a box that injures a customer. Or, what if the waitperson in a diner spills coffee on a customer? The employer would be liable under respondeat superior because the action related to the kind of work the waitperson was hired to perform, took place at the diner while it was open, and served the interests of the employer.

A contrasting example would be an employee that was hired to deliver appliances to residential homes that gets into an altercation on a delivery and assaults a customer. Let’s say the employer failed to do a thorough background check, where they would have seen that the candidate had a history of charges against them for assault. This would not be considered an example of respondeat superior, as assaulting a customer is not within the scope of duties for the position. Instead, this would be considered negligent hiring.

Let’s look more into negligent hiring in the next section.

Employer Liability for Employee Wrongdoing: Negligent Hiring

Employers sometimes have a duty to others to exercise reasonable care in carrying out certain duties. When that duty is not met and the failure is a proximate cause of harm to others, the party that failed to adhere to its responsibilities may be found negligent. Intent to cause harm is not a requirement. When an employer is negligent in determining who it hires, the liability that runs based on respondeat superior extends to employee actions that lie outside of the scope of duties.

If an employer fails to conduct an adequate background check and hires an unfit employee who uses their position to inflict harm on others, it may be liable based on negligent hiring, which involves foreseeability, knowledge or public policy. There is no single standard for when or how much an employer must do to screen unfit employees. Those set forth above; public policy, foreseeability, and knowledge, apply based on industry standards and public policy concerning a particular type of employment.

As we’ve seen, checking criminal records is an important part of screening candidates. Let’s look more into the details of them in the next section.

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.

Employment Tests

Many employers seek more information about applicants than background checks, social media sites, and interviews disclose. The array of tests used to make hiring decisions and determine if someone is fit to continue as an employee is indeed wide. There are tests to determine illegal drug use, truth, intelligence and skill, physical fitness and more.

In the next few sections, let’s look at more information about various employment tests, including:

• Drug tests
• Medical examinations and limitations of their use
• Polygraphs and honesty tests
• Scored tests of ability

Let’s start with drug tests.

 

Drug Tests

Many employers rely on drug tests to detect use of illegal drugs. Some tests are required prior to hiring. Others are required as part of periodic medical exams, to verify that someone in rehab has not relapsed, at random times, after observations of behavior that create a reasonable suspicion of drug use, and after on-the-job accidents.

Random drug testing can be conducted without notice and absent suspicion for a specified percentage of the workforce. Previously, marijuana was the illegal drug of choice among users. Whether marijuana will remain an illegal drug under federal law is questionable. Many states have legalized marijuana with varied conditions.

With few exceptions, a refusal to take a drug test means no offer of employment. Exceptions for employees are based on working for the government, union membership, and state laws regulating drug tests, though no state prohibits all forms of drug testing. Some occupations require periodic or random drug tests. Post-accident testing is often a necessary part of an investigation. Random drug testing is often limited to safety sensitive jobs. Example: pilots may have to test, but it is an unlikely requirement for janitors.

Disparate treatment can be alleged if other employees with different protected class characteristics failed tests based on faulty processes and were treated more favorably. Similarly, requirements for random testing that are higher for members of a protected class can provide a basis for lawsuits, though success is unlikely as public policy favors the elimination of illegal drug use.

Declining a test is grounds for termination. Even if someone challenged the request based on allegations of disparate impact, the maxim is “work now, grieve later.” If the test were negative, the challenge could continue. If positive, the challenge would be hobbled by the fact of illegal activity.

Next, let’s look at medical examinations.

Medical Examinations

The ADA defines a medical exam as any “procedure or test that seeks information about an individual’s impairments or health.” (42 U.S.C.A. 12114(a) (2017)). The standard is so general that identifying what qualifies seems like guess work. When the application of ADA standards is literal, it is less so. For example, a session with a psychologist to treat a mental illness is a medical exam. A session where a psychologist proctors a session where the Myers Briggs personality assessment is taken is not.

As is often the case, not every factor is necessary to establish that an exam or test qualifies as medical under the ADA. Tests not considered medical in nature include:

• Strength and agility tests.
• Drug tests. Congress has excluded tests for the use of illegal drugs from coverage as medical exams.
• Polygraph exams or tests to determine honesty.
• Personality assessments.
• Vision tests devised to check the ability to read or detect objects.
• Demonstration of the ability to perform job tasks.

Discernment of what qualifies as a medical exam involves whether it is intended to assess health or impairments as contrasted with abilities or traits. There are circumstances that overlap. For example, someone with severe arthritis might not be able to do the pull-ups required to qualify for a job as a firefighter. A test that includes x-rays and an MRI to determine the extent of the condition would qualify as medical. A test to determine ability; how many pull-ups the applicant could complete, would not.

Next, let’s look at the limitations on the use of medical examinations such as these.

Limitations on the Use of Medical Examinations

The ADA specifies whether medical exams can be conducted, the type of exams that can be performed, and how results can be used:

• Pre conditional offer – Cannot be used.
• Post conditional offer – Can be used, without restriction and if it is voluntary, job-related and consistent with business necessity.
• Denial of employment is limited to situations where the applicant cannot perform the essential functions of a job, with or without reasonable accommodation, or is a “direct threat” to self or others.

Medical exams should be the last step in the hiring process. Tests should be uniform and given to all candidates considered for the same job category. Candidates who appear to be disabled cannot be singled out.

Current employees cannot be required to undergo a medical exam unless it is voluntary, job-related and consistent with business necessity. An apparent inability to perform a job may be a performance-based concern. When an employer has a reasonable belief that an inability to perform a job is due to medical conditions or is a direct threat to self or others, a fitness for duty exam can be job related and consistent with business necessity. A good summation of the requirement is if a reasonable person would question if an employee is capable of performing a job because of what appear to be medical limitations.

The requirements of certain occupations support job-related medical exams. Some are required by law. For example:

• Actors in the adult entertainment industry are required to undergo testing for sexually transmitted diseases (STDs).
• Some law enforcement personnel are required to undergo periodic psychological assessments.
• Licensed commercial pilots are required to have a medical check every year.
• Anyone holding an airline transport pilot’s license and all pilots 40+ are required to undergo medical tests twice a year.

Those are not fitness for duty exams based on an employer’s observations. They are requirements based on business necessity and the potential for danger to self or others.

Let’s look next at polygraphs as honesty tests.  

Polygraphs as Honesty Tests

Why retailers don’t want someone with sticky fingers to oversee their tills or self-interested accountants to keep their books requires no explanation. Honesty and trust are important factors for most jobs. Initial inquiries are directed at whether a candidate has been honest about presenting their credentials. Aside from that, employers rely on tests that purport to reveal whether a candidate should be trusted.

Most are familiar with polygraphs. A common source is television shows that feature law enforcement efforts to solve crimes. It seems the tests are considered reliable at that level as suspects are often cleared based on passing. As most know, they are inadmissible in court. Why? Because the test does not detect if someone is lying.

A polygraph test measures changes when a subject is questioned, including respiration, blood pressure and perspiration. Psychiatrists deride polygraphs as worthless because a sociopath lies without evidencing discernible reactions. Nonetheless, employers rely on them during investigations of thefts or serious wrongdoing. Once an often relied on pre-hire tool in the private sector, they are no longer in use for that purpose because of the Employee Polygraph Protection Act (EPPA).

The EPPA requires that submission to tests be voluntary, not be made a condition for continued employment, and are subject to many other procedures we will study in a subsequent lesson. EPPA provides limited exceptions to private sector use including jobs where controlled substances are produced or dispensed and security services involving nuclear plants or water supplies. Government agencies, including law enforcement and security agencies, are allowed to polygraph candidates and employees.

Scored Tests of Ability

When professional golfers compete at a PGA tournament, a cut-off score is determined after the second round: the top 70 finishers, including ties, comprise the field for the third and fourth rounds. That is an objective standard. Cut-off scores on tests that tend to disqualify certain protected classes might not be as objective as the PGA requirement. Outcomes should be examined to ensure that they meet the requirements of job relatedness and business necessity.

Legal responsibilities for accommodation of disabilities commence when someone is hired. Unless a candidate is visibly impaired, an employer is not responsible for providing an accommodation when tests are conducted. Otherwise, an obligation arises when a candidate requests an accommodation. Applicants should be provided with advance notice about testing requirements. Employers can require that requests for accommodation be documented. Accommodations can include additional time, interpreters, large print forms, breaks, quiet locations of interviews in lieu of testing.

Conclusion

Looking back at this week, we covered the many methods of recruitment, pitfalls and problems to avoid, statistical evidence in discrimination cases, affirmative action plans, the narrow exception of BFOQs, application processes, the complex area of visas, preemployment inquiries, representations by employers during the pre-hiring process, omissions and false information from employees on applications, and subjective versus objective processes during interviews.

We move on to what sometimes transpires when things go wrong after the happy beginning of that first day on the job: discrimination and sexual harassment in the workplace. More about that would be redundant as it warrants mention in the introduction. It is a lively, relevant and interesting topic.