The first job a person gets is, in many ways, the most important job you’ll ever have. If – that is – you look upon it as what is should properly be – a learning experience.
Using a credit report is becoming more popular for businesses hiring employees. We’ve always felt this was an unnecessary risk to employers because:
- What is the business justification? If a job requires an employee to handle large amounts of cash, or have access to the same, that’s good justification.
- If someone has a bad credit report – especially in these economic times – does that make them a poor candidate for a job? Not necessarily.
- There is a risk that women and minorities may be disproportionately affected, and that could cause big problems.
So unless you have a good reason to do it, don’t!
If Krispy Kreme didn’t have enough problems already – here comes news they’ve been fined by the EEOC for hiring illegal (undocumented) workers in their Cincinnati factory. The fine amounts to $40,000.
What is remarkable about this fine is how easily it could have been prevented. The paperwork is easy – you just download an I-9 form off the internet. If there is any doubt about the documentation a candidate provides, just login to e-verify that’s provided by the Department of Homeland Security. That would have been much cheaper than $40,000 and the embarassment caused by the resulting publicity.
And in case you think it might not happen to you – ICE has announced audits of 652 other businesses in the coming months (and we’re sure there are more to follow!). The Obama administration has changed the focus from illegal employees to the employers that employ them.
Just after posting my opinion on job references comes more comments. In a recent Wall Street Journal article, a job applicant was frustrated because potential employers wanted a minimum of three job references, but her prior employers had a policy of not providing such references.
Elizabeth Garone provided good advice, suggesting that supervisors no longer with the same company might be willing to be references (and because they’re no longer with the company, may be more willing to talk to a prospective employer).
Again, if I’m leaning towards hiring a candidate, I’m not going to spend time calling references – more often than not, the reference can’t give me any good information and the candidate is only going to list references that show that person in the best possible light! It’s not worth my time! I can do criminal investigations, skills testing and personality/instinct testing that will more properly predict success than a reference check.
Now, many attornies are warning employers about the hidden dangers of LinkedIn. Specifically, attorneys are advising employers to be wary of giving glowing remarks about employees on the site because the employers risk having the recommendations used against them in a discrimination or harassment suit.
Some people say yes, others say no. I’m in the latter category.
First, unless the candidate is a complete moron, they’re not going to give you names of people who provide a negative reference. And most previous employers are understandably nervous about providing any information on a former employee.
Some of our clients like to verify the candidates dates of employment or compensation. Fine – ask the candidate for a copy of their most recent W-2 form or paycheck stub. Other than that, calling references is a lot of time for a very little reward.
Following standard procedures, you can require a background check, drug testing or even skills testing to verify information and make sure the candidate is you he/she says they are.
Here’s an article in the South Jersey Courier Post that talks about the reference controversy. However, I seriously disagree with parts of the article that suggest visiting a candidates social networking sites as a pre-hire investigation. As I wrote back in May, using google and social networking sites to evaluate potential candidates is a really bad idea.
What does calling references accomplish?
At-will employment – the concept that employer or employee may terminate their relationship at any time, for any reason – is subject to so many exceptions that people frequently despair. Depending on the state, at-will can be exempted for such things as violations of public policy, discrimination, or a ‘contracted’ employee.
Montana is the only state that does not follow the at-will doctrine for general employment. However, an employee in Montana who is still within the company-determined probationary period (or, if the company does not have a probationary period, the first six months of employment) can still be termed under what is essentially an at-will relationship.
HOWEVER – there’s good news. Done properly, at-will can benefit the employer. The most important thing is to mention at-will every time (or at least most times) an employee or job candidate signs a document.
Case in point – Radio Shack. A former employee alleged that Radio Shack terminated her for medical reasons. But the employee:
- First, expressly agreed with the terms of her “Preliminary Online Application” that, if employed by the Company, she would be employed at-will. The document also provided that if she was hired, her at-will employment could only be modified by a separate written document signed by the employee and an executive officer of the Company.
- Second, in her formal “Application for At-Will Employment,” the plaintiff again agreed to these same terms.
- Third, in acknowledging receipt of her “Team Answer Book,” the plaintiff signed a form confirming her at-will employment status with the Company.
- Moreover, there was also evidence of a personnel record noting the plaintiff had taken a leave of absence, which stated that “The below named person is an AT-WILL employee and no information on this form shall change the employment status.”
So therefore, there is no reason for any employer to search Facebook, MySpace, etc. for further information on a candidate. Sure, you might find more information – but it may or may not be true. And if you find information that you’re not supposed to know, then you could be liable for a wrongful employment decision – whether you used that information or not.
Just say no to Facebook when hiring an employee.
Jackie Ford at Marketwatch has a good article which articulates specific, additional reasons why employers can be liable.
Starbucks narrowly missed losing another employment-related lawsuit – this time, about their employment application.
A California State Court of Appeal overturned a decision that would have made Starbucks liable for $26 million because of an improper employment application.
In California, it’s permissable to ask if a candidate has previous criminal convictions – except for minor offenses, such as possession of marijuana. The Starbucks application made no such provision.
What is of bigger concern is what application form most businesses are using. One of the first things we review during our HR Compliance Audit is the employment application. Small businesses often use applications from their local office supply company.
Each state has different criteria, and the employment application needs to be state-specific and legally reviewed.
Time to check your employment application!
When we conduct HR Compliance Audits for our clients, one of the first things we look at is their employment application (assuming they even have one).
Most smaller business go to Office Depot and pick up a packet of standard applications. Big mistake. Most of those applications are not state-specific and may even ask questions prohibited by state laws.
A legally reviewed employment application is critical. Solely relying on a resume does not solve the problem: you should get signatures that the candidate signs understanding that you’re an at-will employer; that they approve of you getting references or background checks; and that any lies on the application could result in failure to hire or termination.
Also – studies suggest that up to 70% of all resumes contain false or misleading information.