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For many businesses, especially those in the convenience store space, navigating and ensuring employment law compliance can be extremely difficult and costly.
With high employee turnover, it is necessary for these businesses to have application processes that are seamless and effective — processes that can easily supply the labor the business needs in a timely fashion. However, it can be difficult to comply with local, state and federal law during the hiring process. If the law changes, so must a business’ application and onboarding processes.
We at PeopleMatter teamed up with employment law attorneys, Kristen Baylis and Stephanie Lewis of Jackson Lewis, to discuss some hidden compliance traps and pitfalls that often lead to legal implications when ignored.
How Can the Hiring Process Create Legal Claims Against the Company?
In a word: discrimination. In several words: The hiring process can expose a company to legal claims when a hiring decision is based on an applicant’s status in a protected class (e.g., race, sexual orientation or religion); this can include affirmatively screening in favor of certain protected classes.
If an applicant feels they have been wrongfully denied employment based upon their belonging to a protected class, you could find yourself in the tricky situation of having to prove otherwise in court. This can result in legal damages, fines and penalties, attorneys’ fees and costs, and, at times even worse, negative PR for your company.
With employment law matters, it is much easier (and cheaper) to prevent a claim than to have to defend against one.
What’s the Difference Between Diversity Initiatives and EEO Policies?
A threshold issue is distinguishing the difference between diversity initiatives and Equal Employment Opportunity (EEO) policies.
A diversity initiative is an in-house policy that promotes diversity within the workplace for protected classes. They are well-intentioned and positive additions to the workplace, as they are a proactive effort against prejudices based on things like race, disability status or religion.
However, it is extremely important to remember that diversity initiatives cannot be used to select applicants because of their status in a protected class. Regardless of a diversity initiative, a company should select the most qualified candidate and not base hiring decisions on an applicant’s status in a protected class. To employ an individual because he or she represents a protected group, though potentially well-intentioned, is unlawful.
An EEO policy clarifies this principle and highlights that employment decisions are not based on an individual’s status in a protected class. Fail to recognize this distinction and you may find yourself in a legal bind, which could lead to litigation and bad press.
What Are Screening Process Risks and How Can They Be Avoided?
Screening is an important part of any application/onboarding process. However, it is important to maintain a screening standard that’s in keeping with current law. This is difficult, as laws change frequently, and you need to ensure that your solution providers are able to adapt.
Here are the main areas where non-compliance can be avoided, so as to reduce the risk of claims:
The first step in the application process should include an up-to-date, standalone EEO Statement. This can help prevent a claimant from arguing that he or she wasn’t made aware of the EEO policy during application, and that the EEO policy was ambiguously misinterpreted by that person.
Also, you must avoid asking certain questions at the application stage. For example, those related to medical history (banned at a federal level) or criminal history (banned in a growing number of states and counties).
Questions to Avoid During Application Process
There are risks in asking questions that stray from a person’s ability to do the job. Certain questions, though perhaps well-intentioned, can glean information that need not (and sometimes cannot) be a part of the application process.
For example, asking someone “Where are you from?” could give you information about that person’s national origin, which is a protected class. Rather, you should ask: “What is your connection to the city?” This allows the candidate to offer as little or as much information as they are comfortable offering.
Other questions to avoid, include:
- How old are you?
- Where were you born?
- What’s your primary language/native tongue?
- Do you have children or do you plan to have children?
In a PeopleMatter/Jackson Lewis survey, 25 percent of respondents admitted to looking at applicants’ social media accounts prior to hire. Social media has become a significant consideration in screening processes over the last 10 years. If your company screens based upon social media content, it could be opening itself to liability in an area that is very hard to disprove.
Why is social media potentially dangerous? Social media platforms provide insight into applicants’ lives that is outside of their ability to perform the job. Their profile and social media activity may give you information on protected classes such as race, gender, location, religion ... the list goes on.
If an applicant knows you use social media to screen applications, it may be very tough to prove that your knowledge of information on the social media site was not the basis of his or her rejection.
There are a growing number of states that are limiting credit checks in the employment process. The list is rapidly expanding, with Washington, D.C. and 29 other states considering implementing similar prohibitions. Thus, it is important that you select your consumer reporting agency with care.
For instance, if your business is legally able to conduct a check on an employee in Montana, that doesn’t necessarily mean it’s legally able to perform the same check in New York. Having a provider that understands this variation in law is key to providing a robust compliance policy.
Furthermore, you must review your credit check policy both substantively (is a credit check necessary in the context of this job?) and procedurally (making sure that when collecting information, you are being compliant with the Fair Credit Reporting Act).
Statistics show 92 percent of businesses conduct criminal background checks. This is a major area of focus for the Equal Employment Opportunity Commission, as it's argued that such checks can have the effect of disparately impacting minorities. Several states have enacted “Ban The Box” legislation, which prevents private companies from conducting these checks at all during the application stage, so as to prevent potential discrimination.
It is recommended that criminal background checks be used only for positions in which it is absolutely necessary and related to the job. Furthermore, your background check policy should be reviewed at least annually to ensure the policy remains relevant.
The Light at the End of the Tunnel
Though compliance relating to the application process is tricky terrain to traverse, it is not without its benefits.
President Obama has extended Work Opportunity Tax Credits (WOTC), which is good news for the convenience store industry considering that 20 percent of hourly workers pre-qualify for $9,600 in tax credits. Today, roughly $1 billion is claimed annually in these credits from private companies who are employing individuals in a tax-compliant manner. WOTC has no cap on the number of individuals from whom employers can generate credit and has been useful in integrating marginalized groups to the workforce.
While compliance may not seem like a revenue generator, non-compliance is one of the most perilous routes to increase company expenses through multiplied fines, negative PR, and legal fees and costs.
To stay compliant, review your application processes and policies, and ensure your solution providers are adaptable to the legal variations of cross-state application processes.
Editor’s note: The opinions expressed in this column are the author’s and do not necessarily reflect the views of Convenience Store News.