Employers must carefully choose employees from the right job pools. Doing so will not only net the best employees but also help employers avoid costly claims of workplace discrimination.
Before employers can invite prospective employees to visit their offices or submit resumes, they must advertise properly so their job pools will not rule out any protected groups of potential employees. This problem might develop if an employer tried to fill an entry-level position by placing the job advertisement only in a predominately white suburb’s newspaper. The employer should post the ad with all relevant local schools and on a number of respected websites regularly visited by a cross-section of job applicants.
Job hunters should remember that their rights under most federal and state employment law statutes become enforceable during the application process. For example, if an African-American job applicant is offered only the federal minimum wage for an entry-level job but learns that the white applicants are offered a higher starting wage, the African-American applicant’s state and federal employment rights are immediately enforceable.
Although all employers want to avoid hiring problematic employees, there are limits on the types of backgrounds checks that can be run. Routine checks into whether an applicant earned specific academic degrees, provided accurate work history or has the skills necessary to handle the desired job are usually acceptable. However, it is not always necessary to subject each prospective employee to more invasive scrutiny through criminal background checks, drug testing and credit checks. If an employer decides to pursue such information, applicants should always be required to provide written permission for such background checks to be run.
A general rule is an employer should require a screen of only the type of past information that has a direct bearing on the prospective employee’s ability to perform future job tasks. For additional information on this topic, please visit the EEOC’s website.
The Labor Department provides information about compliance with legal employee testing and assessment. Employers should consult with their attorney to be sure they are applying the proper state and federal guidelines when performing drug or alcohol screening. This holds true whether testing prospective or current employees.
The Department of Health and Human Services’ Drug-Free Workplace Kit provides employers with information and resources for maintaining drug-free workplace policies.
As an example, the federal government’s drug program requires it to:
The Labor Department maps out laws from each state and U.S. territory addressing drug- and alcohol-free workplaces. It also lists each state’s labor office if you need more information regarding drug and alcohol abuse or any other workplace issue.
The Employee Polygraph Protection Act of 1988 governs lie detector testing in the private sector. The act permits employers to use polygraph testing on job applicants for either security firms or pharmaceutical manufacturers, distributors or dispensers.
Polygraph testing must meet the act's requirements, which include using a licensed examiner and limiting disclosure of the test results.
Job applicants and employees may contact the American Civil Liberties Union if they believe their workplace privacy rights were violated.
The word “reasonable” is key to understanding the lawful requests made by some disabled job applicants and employees. Obviously, an employer can’t completely alter the workplace or workflow to accommodate one person as opposed to meeting the needs of the majority of workers. Yet disabled people have every right to request such things as special equipment, reduced hours or time off to see doctors for ongoing care. While these requests may sound cumbersome at first, they must be honored to comply with such legislation as the Americans with Disabilities Act and to provide every employee with an equal opportunity to perform assigned tasks with appropriate ease and dignity. The Equal Employment Opportunity Commission provides information for employers to implement procedures for reasonable accommodations.
The EEOC enforces all federal legislation designed to protect job applicants and employees. The EEOC worked alongside the Civil Service Commission (now known as the Office of Personnel Management) and the Labor and Justice departments to produce the Uniform Guidelines on Employee Selection Procedures in 1978.
Contact your state’s labor office to learn more about further protections provided to workers. The Labor Department published a fact sheet specifying what is required for an employer–employee relationship to exist.