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OK at Work, hosted by Offit Kurman attorneys Russell Berger and Sarah Sawyer, is a weekly podcast that discusses current events and legal issues impacting business owners. From updates on the ever-changing employment law landscape to the risks and benefits of integrating AI into your workplace, subscribe to stay up-to-date on issues and events that may impact you and your business.
Sarah Sawyer: Welcome to this week's
OK at Work with myself, Sarah Sawyer,
my colleague Russell Berger, both
attorneys at Offit Kurman, and today we
are talking about regulations related
to hiring and publishing, ads for
applicants, taking applications in.
And in recent times we've seen an
increase in state laws that are governing
that process including things like
what you might have heard of is ban
the box laws where you're not allowed
to do a criminal background check,
or ask about certain background items
until a certain point in the interview
process or pay transparency laws.
There's a lot of different
things largely governed by state.
That have been enforced and
that people need to be thinking
about the hiring process.
I think a lot of times employers will
think about things once they've hired
employees and they've got a handbook in
place and do those policies look okay?
But you also need to be paying attention
to the hiring process, the application
process, those types of things.
So what are some things that people
should be keeping in mind when it comes
to these hiring practices, Russell?
Russell Berger: Yeah.
Well, I think you really hit
the nail on the head there.
'cause to start with all the employment
laws that we talked about for years on
this program about anti-discrimination,
anti-harassment need for accommodations.
If they apply to employees, they
apply to applicants as well.
So, that's just a starting point
is, that even though they're not an
employee, that the employee protections
apply to job applicants as well.
So all the things you would think about
for employees you have to consider
in the application process as well.
And then in addition, you mentioned ban
the box, which regulates when you can ask
about a criminal history in the process.
Different jurisdictions have
different rules on that.
We've got pay transparency
laws that require, posting
with reasonable job ranges.
Again, that's a state or
jurisdiction specific issue.
Certain jurisdictions have rules that
say you can't ask about what someone
is currently making and prohibit
certain types of questions like that.
So, I mean, you really have to have, a
basic understanding of all these things.
And I think most helpfully you develop a
process and a protocol and not necessarily
a script for an interview, 'cause you
wanna probably make it a little more,
personable and interactive than that.
But at least in an outline, a
framework and, what to stay away
from throughout the process.
Sarah Sawyer: Yeah, I think for as
is the case with a lot of things,
there's exceptions to some of this
as well, depending on what it is.
And it's gonna be
different for each state.
So, for instance, when we mentioned
Ban the Box which deals with background
checks, well, there might be, rules
around when the background check can be
done and how you use the background check
and what you can deny employment for.
But there might be exceptions to that.
Obviously in highly regulated
industries like financial.
Or, maybe childcare or safety regulated
areas or, varying types of areas.
People like that are hiring
police officers, for instance.
Right.
Criminal background checks
are really relevant to that.
There are exceptions to some of these
things and there is nuance, and I think
that's one of the challenging things
about this patchwork of regulations
is that they're state based and
sometimes they're even local based.
So some states might not have a statewide
law, but there'll be a local jurisdiction
that has particular rules on these
topics, and then there's nuance and
exceptions within those often as well that
might accommodate for a certain type of
business or a certain type of situation.
And those can, even when you drill
down even further sometimes that
can even be position specific
versus industry specific as well.
Definitely good to be prepared and
have a good understanding of what
you should do when, 'cause there's
good reasons sometimes to take a
little bit of a different course
of action based on the facts.
And so it's definitely a nuanced area.
Russell Berger: Yeah.
Right.
Well then let's say you go through that
process and you do a background check or a
credit check, what have you, and you do it
in a lawful way, and you find information
that would disqualify the candidate.
That implicates another law,
the Fair Credit and Reporting
Act which is a federal law.
So it applies to anywhere in the country.
If you're in the process of hiring
someone, and oftentimes, we say
do the background check after a
conditional offer goes out and make
sure your offer letter that is clear,
that is conditioned on successful
completion of a background check.
But, if you hire third party to
do a background check, and you
would get a hit and you don't
wanna go forward with the person.
Then there's a two step process
where you give preliminary notice of
a potential adverse action and the
potential employee has an opportunity
to correct the record or respond or
challenge or object or what have you.
And then you'd have a second letter
you'd send after that process completes,
assuming it hasn't changed the answer.
Again, it's not that you
have to have that memorized.
What you do need to memorize or
know is, if I do a background check
and I'm not gonna proceed with a
candidate because of what I learned
in the background check, there is
a process that has to be followed.
There are steps that you have to
follow and another one of those
kind of technical compliance areas.
Sarah Sawyer: Yeah, and definitely
something to pay close attention to.
Well thanks Russell, and
we'll see you next time.
Russell Berger: Thanks, Sarah.