Recent surveys show a significant demand for professionals skilled in design and related construction disciplines. While the demand by architecture firms to add staff is intense at this time, it is likely to cool significantly in the next year because of the realities of inflation and the fears of recession. Within a few years, this could result in a surplus of architects. Engineering firms and other providers in the infrastructure project delivery system are likely to see a continuing, and perhaps escalating, demand for professional talent because of the huge investment by the federal government in infrastructure and carbon-reduction projects.
A proven risk management tactic for firm leadership is to create an employment culture where individuals are valued for their skills and commitment, understand their contribution to the success of the firm, and receive appropriate compensation in a safe and productive environment. However, when there is a rapid demand for more talent, there is the danger of inappropriate recruiting and hiring practices that could lead to employment liability claims. In this context, it is imperative that design firms are conscious of which questions are appropriate to ask of prospective employees and which are not, and at what stage you can ask those questions during the hiring process.
Both federal and state laws restrict pre-employment inquiries and hiring decisions based upon protected characteristics, such as race, age, gender, religion, and disability. When an unsuccessful applicant alleges that discriminatory purposes motivated a hiring decision, the employer has the burden of showing that it based its decision on objective criteria.
An employer’s first contact with a prospect is typically the application process in response to a job advertisement. The employment application is the first opportunity to learn about the applicant, but applications should be prepared so as not to inquire further than necessary. Use standardized application forms to solicit basic information about applicants that may not be included in their resumes. Employers should routinely seek the following basic information on job applications:
- General biographical information,
- Previous experience in the industry,
- Education and licensure status,
- References, and
- Applicant’s statement and signature.
The employment application is an important tool to put applicants on notice of employment policies and to gain their consent to or acknowledgment of those policies. On the application, common disclaimers and statements should include:
- Employment-at-will disclaimer,
- Equal employment opportunity notice,
- Notice indicating that false, misleading, or omitted information is grounds for termination,
- Requirement that applicants sign authorizations or releases for background and/or reference checks, and
- Testing notice and acknowledgment that the workplace is smoke-free and drug-free and that the applicant agrees to comply with all related rules, including drug and alcohol testing.
To avoid potential claims of discriminatory actions in an employer’s hiring practices, avoid questions relating to the following topics:
- National origin,
- Native language,
- Marital status (or request for name of spouse),
- Children and childcare arrangements,
- Direct or indirect questions about medical conditions,
- Disabilities or necessity of reasonable accommodations,
- Past leaves of absence, and
- Memberships in charities or organizations.
However, firms need to realize that each employment position may include unique responsibilities or attributes that necessitate including questions on a job application relating to some of the topics or issues listed above.
Background checks are a key component in the hiring process and can be an important part of a workplace violence prevention program. Many states protect employers from negligent hiring claims if they have performed an appropriate background check.
The Fair Credit Reporting Act (FCRA) is a key federal law governing the conduct of background checks. The FCRA is highly technical and employers must strictly comply; a good faith effort at compliance is not enough. If a firm is going to conduct background checks, it is imperative for the firm to have a clear process and appropriate forms in place to comply with FCRA requirements to reduce the risk of exposure to costly FCRA claims.
Background checks have to comply with any state laws and personal privacy laws. Haphazard searches may uncover a potential employee’s demographic information or information about their affiliations. Relying on or appearing to rely on information about an employee’s protected class or protected activities could create exposure to discrimination or retaliation claims under various federal, state, and local anti-discrimination laws. In addition, some states have protections surrounding off-duty conduct so employers must be careful in how they use information they may find.
Conducting reference checks is one method to investigate an applicant. However, many former employers are reluctant to provide information on a reference check other than basic information such as hire date, position, hourly wage or salary, and separation date. To obtain the most information on an applicant from a reference, follow these suggestions:
- Provide an authorization and release signed by the applicant,
- Assure confidentiality,
- Contact the direct supervisor who should have the most information about the applicant,
- Explain the position for which the applicant is seeking,
- Ask open-ended questions, including, “Is there anything else I should know about this applicant?,” and
- Ask whether the former employer would re-hire the applicant.
Increasingly, applicants are searching for new positions while still employed so they might be extremely reluctant to provide authorization. An authorized contact that leads to retaliation by the current employer could result in a valid claim against the inquiring firm.
Most employers will want to know about an individual’s criminal history, but they cannot use any background information received from any source to discriminate against potential new hires in violation of federal, state, or local law. Because arrests and convictions disproportionately affect certain protected groups, the Equal Employment Opportunity Commission (EEOC) has taken the position that even a neutral policy of excluding all applicants from employment based on certain criminal conduct may be discriminatory. Employers should conduct an individualized inquiry to ensure that any exclusion for criminal history relates to the position in question. This issue becomes an increasingly fraught topic since criminal convictions might include cannabis possession or use. As more states decriminalize cannabis use, convictions could still be on record. This puts firms in the position of whether they should ignore the past or consider it an impediment to future federal contracts, which still recognize cannabis as an illegal substance.
The EEOC has taken the position that questions concerning arrests are improper unless the applicant is applying for a “security sensitive” position. In addition, the EEOC states that inquiries relating to an applicant’s conviction record are improper unless the conviction is in some way related to the essential functions of the position.
Illegal Drug Use
It is permissible for employers to inquire about an applicant’s current use of illegal drugs, and an employer may refuse to hire an applicant because of current illegal drug use. However, questions that are likely to illicit information about whether an applicant had substance abuse problems in the past, or had treatment for such problems, are impermissible under disability discrimination laws.
Employers may test applicants for illegal drug use prior to extending an offer because the Americans with Disabilities Act (ADA) does not consider drug use to be within the definition of “disability.” Employers should avoid questions about prescription drug use to avoid screening out applicants with particular medical conditions.
When searching for competent professional staffing, firms need to remember that while some federal and state laws might not apply to the employment conditions of professionals, the hiring process should be uniform to avoid discrimination and evaluate prospects on their abilities to provide the services needed by the firm. Finding the right employee to fill a position can be fraught with hazards, but by exercising caution and understanding the general rules, firms should be able to navigate the hiring process. As always, when an employer finds itself with a question about best practices, solicit legal guidance to prevent the firm from making a critical mistake.
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