Pre-Employment Screening and how its can violate your rights! With the job market being at one of its worst states ever in American history, the number of people looking for jobs are growing. In light of this, employers know they are in a better position to be selective and demanding in their application process and hiring criteria. However, employers must be careful not to cross certain boundaries that may amount to unlawful hiring practices. Certainly, employees should also be cautious of the pre-employment screening questionnaires they come across and be aware of the information they choose to divulge. Below are some (out of the many) modern issues that arise in the context of hiring and selection.
Laws on Pre-Employment Screening
The importance of knowing your rights when it comes to Pre-Employment Screening. California disabilities law restricts the use of a job applicant’s medical information. Note that this is a restriction, not an outright prohibition. During an interview or through an employment application, employers may ask about an applicant’s ability to perform the specific functions/tasks of the job. However, the employer cannot ask about the applicant’s health or medical history; this includes whether the applicant has ever filed a Workers’ Compensation claim. An example of a permissible inquiry would be, “Are you able to stand continuously for at least 5 hours per day?” An example of an impermissible inquiry would be, “Do you have any health condition that may prevent you from performing the job for which you are applying?”
Effective January 1, 2013, employers are prohibited from requiring or requesting applicants to disclose information regarding their personal social media accounts. Social media accounts can include Facebook, LinkedIn, Twitter, Myspace accounts, blogs, etc. Employers cannot ask applicants for their log-in information (e.g., username and password), require applicants to login to their own account in the presence of the employer or divulge any personal social media information. However, as would any other person in the general public, an employer may independently or through a use of an investigator search for and browse the employee’s social media account.
Employers are also prohibited from asking questions about marital status and/or children. An employer cannot ask an applicant if she is pregnant, has children or is planning to have children. Additionally, even if the employer already knows that applicant has children, the employer cannot ask if he/she has made provisions for childcare.
Under the Fair Employment and Housing Act, medical examinations of applicants are only allowed after a conditional job offer has been made. (A conditional job offer is an offer that is contingent upon the satisfaction of certain requirements). However, such post-offer medical examinations are permissible only if it is directly related to and pertinent to the position being applied for or directly related to whether an individual would endanger himself/herself or others. Such exams cannot be arbitrarily given and must be a requirement for all entering employees in similar positions.
The decision about whether to employ any person cannot be based on general beliefs about his/her disability, e.i., Pre-Employment Screening. Each person must be judged solely on whether his/her particular medical history and condition presently prevents him/her from performing the job safely and efficiently. Any medical standard or employment policy which automatically excludes entire groups of people (e.g. all people with high blood pressure, diabetes, AIDS, or back problems) is usually improper.
Note that if an employer decides not to hire (or promote) an applicant because of his/her disability, then the employer must allow the applicant the opportunity to submit an independent medical opinion. It is illegal for the employer to refuse the employee’s ability to do so.
If an employer refuses to hire (or in certain cases, promote) an applicant based on an illegal reason or selection criteria, the employee may have an employment claim against the employer. With that being said, applicants who have been subjected to any of the unlawful pre-employment inquiries discussed above should contact an employment attorney immediately to discuss his/her rights.
