February 2022 Volume 4

OPERATIONS & MANAGEMENT

Where Are the Employees, and How Do We Make It Easier to Find and Hire Them? By Johanna Fabrizio Parker

If you do use background checks, you should train your recruiting staff as to how to evaluate these checks. Employers generally should not consider aged information (more than 5-7 years), or arrests (which the EEOC likens to unproven allegations). Employers also should (a) make sure that any disqualifying factor is job-related and consistent with business necessity; (b) checks are done and evaluated consistently across the applicant population; but (c) with the recognition that each must be reviewed individually. In other words, having an automatic checklist for evaluating -- which would make it easier for employers -- is frowned upon by the EEOC. I know, not helpful (practically). But it is something that you have to consider, and it makes training all the more important. Employers also should be aware of state law requirements for their particular locations. Many states require that individuals first have a conditional offer of employment before any check is done. And some states have a heightened standard for disqualification, e.g., the information revealed in the background check must be substantially related to the job in order to deny the application. So, I’m sure some of you are saying, why do we have to divulge our thinking? We can hire someone (or not) for any (not illegal) reason. Do I even need to say it’s because of the background check? If you use a third party to procure that check, then you do. Under the Fair Credit Reporting Act (FCRA), there is a procedure, which includes both a pre-adverse action notice to the individual and an adverse action notice to the individual. Often, the third-party provider helps here. But I suggest you look closely at any arrangement with

According to the last jobs report from the Department of Labor, the economy added 199,000 jobs in December 2021. While the unemployment rate dropped to 3.9%, the overall “add” in terms of jobs was below expectations. Now, while I could give you an esoteric response to all this (my dad was an economics teacher), my practical self says: it’s still tough to find workers. I wish I had an answer to that challenge, but I don’t. I do have some thoughts on related issues, in the hopes of helping employers to avoid more challenges and just maybe assisting your efforts at staffing. First, the background check -- do you, or don’t you? What do you look for? And how do you proceed if you find something? Unfortunately, there is no “one size fits all” to these threshold questions. Background checks have become a regular part of the hiring process. Employers generally follow this procedure either because clients/customers demand it, or companies are looking to mitigate risk of a later claim, e.g., negligent hiring. But absent some legal requirement (such as your DOT provisions) or a customer contractual requirement, background checks are not mandated. I think this is important to mention because of the current labor market. Do you think about a stop, or a pause, of background checks -- at least for certain jobs that are lower risk in terms of future issues (e.g., without direct access to company funds; not entering customers’ homes). So long as you make this stop/pause an overall decision for whatever group is at issue, this can be a viable option to consider. In other words, you can’t choose to pause, but then check a particular applicant or applicants.

FIA MAGAZINE | FEBRUARY 2022 38