Avoid Making Bad Hires, Part II

Reference Checks without Legal Repercussions

Verify Credentials

Many employers require applicants to have a certain level of education. Some positions (and state regulations) require that an individual hold a current professional license (e.g., lawyer, certified public accountant, doctor).

The Family Educational Rights and Privacy Act may prohibit a university or college from releasing such information without the written consent of the student/applicant. Therefore, include a written release and disclosure statement as part of the overall employment application.

Military Service Record Checks
There is no federal law that expressly prohibits employers from inquiring about an applicant's discharge from military service. However, the Equal Employment Opportunity Commission (EEOC) takes the position that relying on the type of military discharge may be discriminatory.
Because there are only a few jobs where an honorable discharge may be a bona fide job qualification (e.g., jobs requiring certain types of security clearances), an employer should limit inquiries regarding the type of discharge to asking if the employee received a dishonorable discharge and, if yes, to explain the reason.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides that an employer may not be required to reemploy a person after military service if the person's discharge was punitive or other-than-honorable, or if the person was dropped from the rolls of service.

When applying for reemployment, the employee has the burden of proving that he or she meets the eligibility criteria for reemployment. An employee's failure to provide the necessary documentation for reemployment does not necessarily forfeit that employee's reemployment rights if the documentation does not exist or is not readily available at the time that the employer requests the documentation. If the employee is reemployed and documentation becomes available showing that the employee does not meet one or more of USERRA's reemployment criteria, the employer may terminate the employee.

Caution: Some states prohibit any inquiry about the nature of an applicant's discharge from military service. However, the State of NC’s mandatory poster states “you have not been separated from service with a disqualifying discharge or under other than honorable conditions.” I interpret this to mean that documents relating to type of discharge can be requested, however, this is my opinion and interpretation and not intended to be legal advice. Before making the decision to ask for these documents, consult an employment attorney for guidance.

Driving Records
Because an employee may be required to drive or operate a company vehicle during the course of his or her employment, an employer may need to obtain information regarding an individual's driving record and/or personal habits.

An employer may obtain Department of Motor Vehicle (DMV) personal record information upon receipt of a record holder's (i.e., applicant's) written and signed consent.
Caution: Many states further regulate third-party access to individual DMV record information. North Carolina permits ordering DMV records through third parties, however, the third party does not always guarantee the records accuracy.
For commercial truck drivers, the Federal Motor Carrier Safety Administration (FMCSA) requires prospective employers to request certain information from an applicant's previous Department of Transportation (DOT)-regulated employers.

Check References
Often, former employers and supervisors can provide the most helpful information about a candidate's past work experience, ability to work with other employees, customer service skills, attendance, etc.

Information provided by former employers may also help determine if a candidate provided accurate information on the employment application.

Unfortunately, many employers are reluctant to provide detailed references for former employees for fear of lawsuits.

Require applicants to sign a release statement that authorizes the prospective employer to contact past employers for job reference information.
In addition, ask for a waiver signed by the applicant that authorizes the prospective employer to speak with listed references. Typically, such waivers state that the applicant is giving up any claims he or she might otherwise have against reference providers as a result of the information given.

Also, a number of states have enacted laws "immunizing" employers from claims by former employees that they were denied employment because of a negative reference. North Carolina has a law that helps protect employers who provide factual and verifiable information regarding an employee who has demonstrated violent tendencies, committed theft or fraud in the work place to a potential employer. However, before providing any reference information require the company requesting the information to send you a signed release by the applicant.
Source:
Today's HR Daily Advisor

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