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HR Snapshot
HR
Snapshot
DO WE HAVE TO GET PERMISSION TO RUN A BACKGROUND CHECK?
The short answer is yes: the Fair Credit Reporting Act (FCRA) requires you to get permission from your applicant or employee before conducting a background check. Aside from this legal requirement, telling applicants what to expect as part of the selection process is considered a professional courtesy, especially if you’ll conduct background checks, which dig into history that may not be directly related to the work they will be doing.
The FCRA has pretty specific notice requirements. For example, you also need to provide the applicant or employee a summary of their FCRA rights and the appropriate adverse action letters if you decide not to hire them (or terminate an existing employee) because of the background check.
Employers should also keep in mind antidiscrimination protections. Specifically, using criminal histories as a screening tool can have a disparate impact on race and national origin. Because of this, employers should only eliminate applicants based on their criminal history if doing so is job related and consistent with business necessity.
You can learn more about background checks, including legal requirements, on the platform
Answer from Jenny, SPHR, SHRM-SCP
Yes, you can ask applicants why they are leaving their current job. The employment application is a good place to collect this information. In the section where the applicant lists their previous employment experience, you can ask for the reason they left each job. Trends you notice may be cause for follow-up questions during the interview or a reason not to schedule an interview at all.
If you ask about previous or current employment during the interview, be mindful of the direction the response goes. As with any interview question, you should redirect the candidate if they start to share sensitive information. For example, if a candidate says they left past employment due to medical reasons, don’t ask for details about their condition. Instead, you could ask whether they provided notice of their need to resign and whether they left on good terms..
Answer from Kyle, PHR
WE RECEIVED A WAGE GARNISHMENT FOR CHILD SUPPORT THAT THE EMPLOYEE DOESN’T WANT US TO FOLLOW. WHAT SHOULD WE DO?
Valid wage garnishments need to be followed regardless of the affected employee’s feelings on the matter. In this case, you should go ahead and follow the instructions from the garnishing agency, withholding and sending them the specified amounts. The instructions should tell you what kind of notice you need to provide to the employee and provide a contact number if you have questions about remitting the payments. You may want to have a separate conversation with the employee so you can explain your legal obligations and why you cannot refuse to withhold the required amounts. If the employee wishes to get the garnishment discontinued or altered, you can refer the employee to the garnishing agency for further conversation; the employer’s obligations will remain in effect until new instructions are received from the agency.
Answer from Laura, SHRM-CP
IS THERE A DOWNSIDE TO SCREENING THE SOCIAL MEDIA ACCOUNTS OF JOB CANDIDATES?
There can be downsides, yes.
First, screening social media accounts creates extra risk. You could be exposed to information about a candidate’s protected classes, such as their race, age, or religion. If your ultimate hiring decision were challenged, you would need to prove that those characteristics were not a factor in your decision.
Second, it takes extra time and adds an unnecessary cost to your hiring process. The questions you ask on the application and during the interview should provide you with sufficient information to determine whether a candidate is the right person for the job. If you’re not getting the information you need, I would recommend reevaluating the questions you’re asking during the hiring process.
Answer from Kyle, PHR
DOES “AT-WILL EMPLOYMENT” MEAN WE CAN TERMINATE WITHOUT RISK?
No, termination always comes with some risk, even when the employment is at-will. While at-will employment allows either you or the employee to terminate the employment relationship at any time, with or without notice, and with or without cause, it doesn’t allow you to terminate employment for an unlawful reason which includes termination based on the fact that the employee exercised a legal right (like taking family leave or sick leave) or belongs to a protected class (e.g., age, disability, race, sex, religion, national origin).
There’s even some risk when the termination is for cause, because a terminated employee could claim that your reasoning is just for show, and that they were actually terminated for an illegal reason. That risk grows exponentially when you don’t provide the employee with a legitimate reason for the termination. This is why we suggest you tell a departing employee the factual reason(s) why they are being let go rather than falling back on “at-will employment” to avoid explaining your reasoning.
Consequently, the safest way to terminate an employee is to have documentation that justifies the legitimate business reasons behind the termination. If the termination is due to the employee’s behavior or performance, documentation would include infractions of policy, instances of poor performance, and any disciplinary or corrective action taken. If the termination is due to a layoff or reduction in force, documentation would show that there was no work available and identify the business reasons for eliminating the position. If you aren’t laying off everyone in a particular job group, however, you’ll still want objective documentation that shows why this particular person was selected for layoff, such as less impressive performance or less seniority than their peers.
The more you can do to show that you had a legitimate business reason for a termination, the harder it will be for an employee to fill in the blank with their own illegal reason for termination, and the less risky it will be.
Answer from Monica, SPHR, SHRM-CP
