Using Background Information in the Hiring Process
Employment Background Credit Checks As we discussed in our last article, it is not uncommon for employers to look into the background of applicants before deciding whether or not to extend an offer of employment. In addition to conducting criminal background checks, employers may also conduct credit checks and review school records. Below we have included some legal guidelines that employers and employees should be aware of when requesting and obtaining information about the credit history and school records of applicants. Credit Checks: In Massachusetts, a Consumer Reporting Agency may release applicant’s credit reports to employers. However, before requesting a credit report an employer must inform applicants in writing that a credit report will be requested. If information contained in the credit report is the reason for an applicant not to be hired the employer should provide the applicant with the following information: 1. The credit score used to make the adverse hiring decision. 2. Contact information for the Consumer Reporting Agency that issued the credit report. 3. Information about the applicant’s right to obtain one free copy of their credit report each calendar year. 4. Information about the applicant’s right to dispute any inaccurate information contained in the credit report. School Records: The Family Educational Rights & Privacy Act (FERPA) protects access to student records. Schools may disclose “directory information” such as names, basic contact information, and any awards the student may have received, but most student information is confidential. Employers may request that applicants provide a copy of their GPA, course history, or other school-related information, however, unless an employer has the applicant’s written consent they will not be able to access student records on their own. If you have specific questions about information that can be obtained or used in the hiring process, please contact an employment attorney for more information. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreBackground Checks on Applicants – Massachusetts Law Offers Certain Protections
Employment Background Checks – Massachusetts Law Background checks are often used by employers as part of the pre-employment screening process. Employers may be able to access certain information about applicants through the use of criminal background checks and credit checks, but the amount of information they will be able to access will depend on whether the particular employer is a public or private organization, the type of industry, and the nature of the position. In this article we will discuss the use of criminal records in the interview and pre-employment screening process; our next article will discuss the use of credit checks. Have Questions? Call Sankey Law Offices Today At (781)930-3127 Prospective employees with criminal records may face some challenges in the employment process. However, Massachusetts provides applicants with criminal records fairly strong protections when it comes to obtaining and using criminal record information in the employment process. It is important to note that, although many employers rely heavily on background checks, such as criminal records and credit checks, they may also access additional information about applicants through publicly available sources of information. Criminal Record Checks One of the primary ways prospective employers investigate applicants is through criminal record checks. Many employers in Massachusetts obtain copies of applicants’ criminal records through a state system called CORI. Some employers may also have access to more in-depth criminal record information through the federal government, which allows for nationwide searches into an applicant’s criminal history. Have Questions? Call Sankey Law Offices Today At (781)930-3127 In 2012, the Massachusetts legislature enacted a law that prohibits employers from asking about criminal record information on their initial written applications. However, employers may ask applicants to disclose information about certain types of convictions during an interview. If an employer wishes to ask an applicant about his or her criminal history in an interview, certain rules apply. Felonies: An employer may ask if an applicant has ever been convicted of a felony. Misdemeanors: An employer may only ask an applicant to disclose information about misdemeanors that occurred within the last 5 years. An Employer may not ask an applicant to disclose information about misdemeanors where the date of conviction or completion of incarceration was five or more years prior to the date of application. An employer may not ask an applicant to disclose first-time convictions for: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbing of the peace. Employers may not ask about arrests that did not lead to conviction. Most employers cannot ask about sealed criminal records (although some industries, such as daycare centers, do have access to all records, sealed or otherwise.) Have Questions? Call Sankey Law Offices Today At (781)930-3127 What is CORI? CORI stands for Criminal Offender Record Information. CORI provides information about an applicant’s criminal history within the state of Massachusetts. It may also have additional information if outside sources provided the state with their records, but it is not a national criminal record system and typically does not provide information about crimes that occurred in
Read MorePre-Employment Testing: What Employers Can and Cannot Require
Pre-Employment Testing Under Massachusetts Law During the hiring process, job applicants may be asked to undergo various forms of testing in order to obtain employment. As a job applicant, you might expect a prospective employer to investigate your criminal background or check your references, but there are many other types of pre-employment screening that are sometimes used. These tests may include medical examinations, drug tests, and lie detector tests. Some of these examinations may be acceptable regardless of the nature of the position, while others may only be used by an employer when the essential duties associated with a position requires additional testing or when such testing is required by federal or state law. Below we will describe several different types of pre-employment screening, and when they are permissible in Massachusetts. Do You Have Pre-Employment Testing Legal Questions? Call Sankey Law Offices Today At (781)930-3127 Medical Examinations Medical exams, prior to the employer making an offer of employment, are not permitted unless they simply involve demonstrating how, with or without reasonable accommodation, the applicant intends to perform the essential duties related to the position. Employers may make an offer of employment contingent upon the applicant’s ability to successfully pass a medical examination. This practice is permitted as long as the exam is required of all employees entering the same position, regardless of any perception of disability. Potential employees may not be excluded from the opportunity to gain employment unless they are unable to pass any portion of a medical exam that directly relates to the applicant’s ability to perform a necessary job function and the problem cannot be remedied with reasonable accommodations. Drug Tests Federal law generally takes a neutral stance on an employer’s ability to administer drug tests as a condition of employment in most industries – although industries such as transportation, aviation, and defense may require drug tests in light of safety concerns. Under Massachusetts law the use of drug tests as a hiring mechanism is neither encouraged nor prohibited. If an employer in Massachusetts chooses to administer a drug test it should occur after an offer of employment has already been made – drug tests should not be administered at any earlier stage in the hiring process. Additional Considerations: If an employer chooses to administer drug tests it must be done so uniformly to all applicants; an employer may not single out specific applicants or groups of applicants based on a suspicion that a particular applicant might be a drug user. An employer that singles out specific applicants or groups of applicants may risk a discrimination claim. Employers who choose to administer drug tests must do so in a manner that does not amount to a significant, unreasonable, or serious invasion of privacy. For example, a drug test should not be administered under circumstances that would require multiple test takers to disrobe in the same room. Determining appropriate level of privacy often requires a consideration of the competing interests of the applicant’s need for privacy and the
Read MoreEmployers Must Accommodate Employees Unless it Presents an Undue Hardship
In our last article, we discussed the protections afforded to disabled individuals in the hiring process. As we mentioned, qualified individuals with disabilities are entitled to “reasonable accommodations” to allow them to perform the essential functions of their job. However, an employer is not required to provide an accommodation if it will cause an undue hardship for the employer. In general, employers must accommodate employees unless it presents an undue hardship. But what is an undue hardship? An undue hardship occurs when providing the requested accommodation will substantially interfere with the employer’s ability to carry out business. There are a variety of reasons why an employer may not be able to grant a request for an accommodation. Some of these reasons include: instances when granting such a request renders the employer unable to comply with federal or state laws, where health or safety would be compromised, when the job function cannot be performed by another employee, or where the expense is too great. Massachusetts law outlines several specific considerations for determining an undue hardship: 1. The overall size of the employer’s business with respect to the number of employees, the number and type of facilities, and the size of budget or available assets. 2. The type of the employer’s operation, including the composition and structure of the employee’s workforce. 3. The nature and cost of the accommodation needed. As the factors listed above indicate, there are several different items that must be weighed when determining whether an accommodation would pose an undue hardship. Notably, what may constitute an undue hardship to one employer may not be an undue hardship to another employer, so these determinations must be made on a case-by-case basis. In cases where providing an accommodation creates an undue hardship for an employer, the employer must consider alternative accommodations that would not impose an undue hardship. To this end, employers and employees must work together through an interactive process to determine what constitutes a reasonable accommodation and how to best implement such accommodation. If, after considering alternatives, an employer determines that it cannot reasonably accommodate an employee, the employer or employee may wish to consult legal counsel to ensure there are sound business reasons for denying the accommodation request. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreDisabled Persons Are Entitled To Protections In The Hiring Process
Searching for employment is a difficult process, and having a disability can sometimes make a job search even harder. In order to comply with the law and to provide disabled persons with the protections that they deserve, an employer must understand who is protected under federal and state discrimination laws, what it means to be qualified for a position, and what types of accommodations an employer may be legally required to provide. The federal government defines a person with a disability as: Any person who has a physical or mental impairment that substantially limits one or more major life activities, or who has a record of such impairment (a history of one or more major life activities being limited or an episodic but not currently manifesting impairment), or who is regarded as having such an impairment (a presumption that a person has an impairment, which may or may not be a mistaken belief). This means that, even if a prospective employee is not disabled, he or she is entitled to protection if the employer believes that he or she has a disability. This distinction often occurs in the context of a disease which does not impact the employee’s ability to work, but the employer nonetheless refuses to hire or treats an existing employee as disabled because of the employer’s misperception about the disease. Under these circumstances, the employee is entitled to protections under federal and state law. An impairment is considered to be disabling if it “limits a major life activity.” So, what is a major life activity? Both the federal government and Massachusetts identify several activities that fall within the definition, but neither present an exhaustive list. The Americans with Disabilities Act (ADA) recognizes that “major life activities” can be both physical activities and major bodily functions. These activities may include, but are not limited to: Caring for Oneself Performing Manual Tasks Walking Seeing Hearing Speaking Breathing Learning Working Functions of Bodily Systems or Neurological Functions Under federal and state law, an employer cannot refuse to hire a qualified person who falls within this definition of disability, so long as the person is capable of performing the essential functions of the job with or without “reasonable accommodations” We will discuss these terms in upcoming blog articles. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreInterviews – What Can You Ask And What Shouldn’t You Ask?
What Can You Ask And What Shouldn’t You Ask in Interviews? Obviously, an employer’s intent during an interview is to determine whether a candidate is a good fit for the job. However, the interview process has many pitfalls for an interviewer who is unaware of laws which prohibit questions in certain areas. In Massachusetts, it is unlawful for a private employer with six or more employees, or a public employer with any number of employees, to refuse to hire an applicant because they are a member, or are presumed to be a member, of a protected class. Interview questions that are used in an attempt to gain information about an applicant’s membership in a protected class may be considered unlawful if they are not necessary to satisfy federal or state law, or are not necessary for the specific job qualifications. Sample Questions: Here are some examples of appropriate questions, followed by examples of inappropriate questions accompanied with an explanation. 1. Are you over 18 years of age? NOT: How old are you? Are you old enough to retire soon? Questions regarding age may only be asked to assess if an applicant is of legal age to perform the essential duties of the position when the position requires that an applicant be a certain age. They may not be used for the purposes of discriminating against an applicant due to advanced age. 2. Are you legally authorized to work in the United States? NOT: What is your ancestry or national origin? Where were you born? An employer may inquire into the applicant’s work authorization, but may not ask questions about where a person is from in order to make assumptions about if that individual immigrated from another country, are a native English speaker, etc. 3. Are you able to perform the essential duties associated with the position? NOT: Do you have a disability/handicap? An employer may ask if an applicant can perform all of the duties essential to the position, but the employer may not ask if an applicant has a disability and then make assumptions about the applicant’s ability to perform work-related tasks. As long as an applicant is a “qualified” person with a handicap they should have an equal opportunity for being hired just like any other applicant. 4. Are you a U.S. Veteran? NOT: Are you disabled due to military service? An employer may ask applicants if they served in the U.S. Military but may not ask questions in a manner that would require an applicant to provide additional information associating themselves with a protected category. For information on some additional categories of interview questions that are (and are not) permissible, please refer to this blog article. Please contact us if you have specific questions about employment law and the hiring process. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreHiring New Employees In Massachusetts
Hiring qualified employees is crucial for any successful business. Likewise, prospective employees are equally invested in finding fulfilling jobs which provide fair wages. Over the years, the hiring process has become subject to many laws which regulate the actions of employers in interviewing and hiring new employees. In this series of articles, we will discuss many of the issues that commonly arise when hiring new employees in Massachusetts. While searching for new employees, businesses and organizations may post advertisements for open positions requiring that applicants meet certain reasonable qualifications. However, throughout the hiring process, employers must keep in mind that they must maintain a hiring process that is non-discriminatory. Under Massachusetts law, it is unlawful to discriminate against applicants based upon their membership in a protected class. In Massachusetts, these protected classes include: race, color, religious creed, national origin, sex, age (over 40), gender identity, sexual orientation, genetic information, ancestry and military service. Individuals with disabilities are also protected under state and federal law as long as the applicant is “qualified” for the position. When engaging in the hiring process, employers must beware of the limitations imposed by state and federal law about the types of questions that can be asked during the interview process. Please follow this link for more information about permissible interview questions. In addition to adhering to anti-discrimination policies, employers must also be cognizant of policies regarding pre-employment testing and background checks. Many of these hiring tools are only available at certain stages of the hiring process, or to employers in certain types of industries. For more information about the legal rules governing the hiring process in Massachusetts, please contact an experienced employment attorney in our office and we would be happy to assist you. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreQualified Individuals with Disabilities are Entitled to Reasonable Accommodations at Work
In our last article, we discussed certain protections disabled individuals are entitled to in the hiring process. As we mentioned, under both federal and state law an employer cannot refuse to hire a qualified person who is disabled so long as the person is capable of performing the essential functions of the job with or without reasonable accommodations. But what does it mean to be a “qualified individual” or require a “reasonable accommodation”? These are legal terms of art that we will explain in greater detail below. Qualification: In order to be protected under federal and state discrimination laws in an employment context, a person with a disability/handicap must be “qualified” for the position they are applying for. This means that an applicant must be capable of performing the essential functions of the position with or without reasonable accommodations. Job descriptions often contain information about which functions an employer deems essential, which can help applicants determine which positions they might be qualified for. In determining which functions of a job are essential, and which are merely marginal, an employer might consider: The main objective of the position. If there are other employees who can perform some of the duties. If the function is highly technical or specialized. The amount of on-the-job training associated with the function. What is a Reasonable Accommodation? A reasonable accommodation can be any accommodation that helps an applicant or employee fulfill the job requirements without imposing an undue hardship on the employer. If an applicant needs an accommodation to perform the essential duties of the position there are several different types of accommodations that may be available to them: 1. A change in the physical workspace. Examples: installing ramps, changing the lighting, adding heat or air conditioning, etc. 2. Modification of the job requirements. Example: assigning non-essential tasks to another employee. 3. Allowing the employee to perform a task in a different way. Examples: standing instead of sitting, use of a computer instead of handwriting, etc. 4. Adapting the schedule. Examples: part-time schedule, frequent breaks, late start, etc. It is important to note that job applicants do not have to disclose a disability or history of disability to an employer. However, in order to receive a reasonable accommodation, disclosure and documentation of the disability are often necessary. If you have specific questions about employment law or disability discrimination in the hiring process, please contact us for further information. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
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