“Remaining compliant is becoming simultaneously more important and difficult as we nestle our way further into the 2020s.”
Employment Litigation Abounds
In 2022, the EEOC reported over 73,000 discrimination charges. This was a 20 percent increase from 2021.
While nearly 60 percent of employee lawsuits involve discrimination, wrongful termination, wage violation, and harassment lawsuits have also been on the rise. In fact, employee lawsuits have increased by 400 percent over the last two decades.
Settling an employee lawsuit costs an average of $40,000 and can damage an employer’s reputation and impact morale. Needless to say, lawsuits are better avoided. However, there are many points throughout the recruitment, hiring, and onboarding processes where compliance vulnerabilities can emerge. Here are just a few:
1. Job Posting
Discriminatory job postings are quite common and can lead to problems for employers. The problem is that many hiring managers don’t even realize their compliance missteps. Here are some examples of discriminatory language:
“U.S. Citizens only” or “must have a U.S. passport”
There are minimal circumstances in which U.S. citizenship is required by law. In most instances, a job posting cannot state that U.S. citizenship or lawful permanent residence in the U.S. is required.
“Must be able to fit (a specific machine or work area)”
Job postings should never list specific weight/height requirements or indicate a weight/height preference.
Even words like “lift” or “carry” can be deemed discriminatory
It’s not uncommon to see job postings that state “must be able to lift/carry at least ___ pounds.” Such phrasing has the potential to discriminate against disabled persons who can still perform the job tasks in other ways. Instead of words like “lift” or “carry,” many job listings use language such as “move,” “transport,” “install,” and “remove.”
2. Job Applications
One of the most common compliance breaches on a job application involves a failure to observe relevant “Ban the Box” laws.
Well over half of the states have a “Ban the Box” policy. These laws prevent employers from asking about candidates’ criminal records early in the hiring process. Traditionally, job applications often included a yes/no checkbox next to the question, “Have you ever been convicted of a crime?” Now, “Ban the Box” laws exist to discourage employers from making hiring judgment calls based on stigma alone. The idea is that a candidate’s qualifications should be reviewed and considered before conviction/arrest history questions and screenings are included in the process.
It is important to stay up-to-date on state laws and frequently review job applications and other recruiting/hiring materials.
3. Job Interview
Discrimination in job interviewing is also quite common. Here are some common examples of discrimination in interviewing:
- Questioning language proficiency based on an accent
- Asking about children or future plans to have children
- Asking about health conditions
- Asking about criminal history (state by state)
- Asking about citizenship status
- Asking about age
Even seemingly common questions can be deemed discriminatory when asked during an interview. For this reason, it’s important to understand federal and state discrimination laws and follow best practices.
4. Post (Conditional) Offer
Extending a conditional offer is a common practice. In such situations, employment is usually contingent upon the results of a background check, drug test, or both.
The employer must notify the candidate when a finding in their background report may negatively impact their employment. This particular notification is called a pre-adverse action notice. Depending on the state, there may be specific requirements for this notice.
When an adverse decision is made based on background report findings, the employer must send an adverse action notice to the candidate. Both of these notices exist to inform the candidate of how their background information is used and allow them to review their report and dispute any inaccuracies.
While many background screening companies assist with the pre-adverse action and adverse action notice processes, the employer is still entirely responsible for them. Failure to follow these processes correctly can lead to costly lawsuits.
Learn more about how Peopletrail helps employers stay compliant with these laws here.
5. Post-Hire Screening
The importance of a drug-free workplace policy was outlined in a prior article. However, there are a number of legalities surrounding such a policy, particularly when it involves the random drug testing of employees.
Each state has its own employee screening regulations and outlines different requirements for communicating and implementing employee drug testing policies. Failure to acknowledge these requirements can lead to issues.
Fortunately, most screening companies and (screening) third-party administrators (TPAs) will help organizations stay updated and informed.
Takeaways
A simple word, phrase, or question communicated carelessly can come at a hefty cost to an organization. It’s never been more critical to stay up-to-date on state and federal hiring regulations and follow best anti-discriminatory practices.
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