“Ask this, but don’t ask that.” The “shoulds” and the “should nots” around screening and hiring applicants seem to get more daunting by the year. The wrong move in the hiring process can end up costing your business tens of thousands in legal fines and damages. Check out our ‘High-Risk Hiring’ presentation, featuring Jackson Lewis law firm, a national leader in every aspect of employment law, to: -- Discover exactly how the hiring process can impact legal exposure for your company and the risk you face for noncompliance -- Learn the difference between diversity and EEO … and which interview questions you should avoid asking -- Understand the right and wrong way to conduct pre-employment screening, such as background and credit checks -- See how hiring software can help you decrease risk, turnover and screening costs

2. Today’s Presenters
Stephanie E. Lewis
Jackson Lewis P.C. | Greenville Office
lewiss@jacksonlewis.com
864-672-8048
Kristen M. Baylis
Jackson Lewis P.C. | Denver Office
kristen.baylis@jacksonlewis.com
303-876-2217
Camila Fellabom
PeopleMatter
camila.fellabom@peoplematter.com
843-300-3400

3. About the Firm
Represents management exclusively in every aspect of
employment, benefits, labor, and immigration law and related
litigation
800 attorneys in 57 locations nationwide
Current caseload of more than 6,500 litigations
approximately 650 class actions
Founding member of L&E Global
A leader in educating employers about the laws of equal
opportunity, Jackson Lewis understands the importance of having
a workforce that reflects the various communities it serves

4. Strategically Located Throughout the
Nation to Serve Employers’ Needs
Locations Nationwide*
*Jackson Lewis P.C. is also
affiliated with a Hawaii-based firm
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5. Goals
Describe the legal concerns related
to background checks, credit
checks, and social media screening
Understand how the hiring
process can impact legal
exposure for the company
Explain the difference
between diversity and EEO

6. Diversity and EEO
Diversity
Promote Inclusiveness
EEO
Equal Opportunity

7. Refresher:
Federal EEO Laws
● Title VII
● ADA
● ADEA
● Others

8. Reviewing Applications
EEO Statement
Personal Information
Work Authorization
Employment Desired
Ability to Perform Job
Job-Related Skills
Education History

9. Reviewing Applications
Military Service
Criminal Convictions
(“Ban the Box”)
Licenses & Certificates
References
(Business/Personal)
Limitation/Restrictions
Certification/Attestations

10. Interviewing:
Questions to Avoid
● Age/DOB?
● Where were you born?
● “Native” tongue?
● Able to handle hours/pressure?
● Plans to marry/have kids?

11. Starting Off on the Right Foot:
Screening Job Applicants
Without Breaking the Law

12. Pre-Employment
Screening
● Social Media
● Credit Checks
● Background Checks

13. Poll Question #1
Do you check applicants’ social media sites
during the hiring process?

14. Social Media Screening
PROS
● Invaluable character
information
● Easier to avoid a bad hire
● Avoid negligent hiring claims
CONS
● Lots of impermissible information
● Can taint an otherwise legal
decision
● Tempting to use improper
information
● Increases likelihood of litigation
● Bad publicity

15. Credit Checks
States now limiting use: CA, CT, HI, IL, MD, OR, WA, CO, NV, VA
Most require demonstrated nexus to job duties
California and Oregon prohibit use for most positions
29 others and D.C. considered similar laws in recent years
EEOC filing pattern and practice lawsuits, claiming blanket
exclusions, have unlawful discriminatory impact on minorities

16. Fair Credit Reporting Act (FCRA)
Don’t forget obligations under the FCRA
● Written separate disclosure stating that a consumer report may be obtained
for employment purposes
● Written authorization
● Pre-adverse action notice – summary of rights and copy of report
● Adverse action notices
FCRA enforced by U.S. Federal Trade Commission
February 2014: EEOC and FTC co-authored two documents
● Background Checks, What Employers Need to Know (EEOC Guidance)
● Background Checks: What Job Applicants and Employees Should Know
(FTC Guidance)

17. Poll Question #2
Do you run criminal background checks on
applicants during the hiring process?

18. Criminal Background Checks
Disparate impact on African Americans, Hispanics, and others
EEOC: Is process job-related and consistent with business necessity?
● Targeted screens (i.e., nature of crime, time elapsed, nature of job)
● Individualized assessment (a.k.a.—a dialogue)
● Blanket exclusions = high risk!
92%
of employers use criminal
background checks

19. Criminal Background Checks
Potential for Class Actions
● Eliminating Barriers in Recruiting and Hiring
○ The EEOC will target class-based, intentional recruitment and hiring
discrimination as well as facially neutral recruitment and hiring practices
that adversely impact particular groups.
BMW Settlement for Use of Background Checks on
Temporary Workers
● Consequences
○ $1.6 million in fines
○ Agreement to change background check screening

20. “Ban the Box” Legislation
Over 100
cities and counties have
adopted “Ban the Box”
● Of these, 7 states (HA, IL, MA, MN, NJ, OR, RI)
prohibit private employers from inquiring about
conviction history on job applications
● EEOC endorsed removing question from
applications
Practice Pointer: Remove question from application and ask after conditional offer

21. Some Good News:
Tax Credits for Hiring
● Work Opportunity Tax Credit (WOTC)
○ Federal tax credit for hiring certain target groups
● December 18, 2015
○ President Obama signed five-year extension of the WOTC program (through 2019)
● Nine Targeted Groups, including:
○ Veterans, SNAP (Food Stamp) Recipients, TANF Recipients, Ex-Felons, Long-Term
Unemployed (27 weeks+)
● No limit on number of individuals employer can hire
● Credit as much as $9,600
○ 40% of the first $24,000/year of wages

22. Key Takeaways
Select your consumer
reporting agency with care
Review job applications and
postings for legal compliance
Designate and train staff making
accept/reject decisions
Implement FCRA compliance
policy with form notices

23. PeopleMatter Demo

24. HRCI & SHRM
Today’s Webinar
HRCI Credit: Pending
Recertification Credit Hours Awarded: 1
Specified Credit Hours: HR (General)
SHRM Activity ID: 16-VYH0Y
Professional Development Credits (PDCs): 1

25. Q&A
Stephanie E. Lewis
Jackson Lewis P.C. | Greenville Office
lewiss@jacksonlewis.com
864-672-8048
Kristen M. Baylis
Jackson Lewis P.C. | Denver Office
kristen.baylis@jacksonlewis.com
303-876-2217
Camila Fellabom
PeopleMatter
camila.fellabom@peoplematter.com
843-300-3400