Employers may be liable for an employee's crimes or accidents if the employer knew or should have known that the employee posed a threat of harm to others. Negligent hiring claims arise when an employee injures a co-worker or a third party, and the injured party claims that the employer should not have hired or retained the employee. An example would be a child care agency which fails to conduct a background check and hires a felon who served time for child molestation. If the employee abuses a child in the agency's care, the agency may be held responsible. Similarly, when complaints are made about an employee's conduct with children and the agency does not take action, the agency may be liable on the basis that it knew or should have known that the employee was a danger to children and it negligently retained the employee.
Avoiding claims of negligent hiring and retention requires thorough and careful screening of employment candidates, conscientious supervision, and not tolerating employees who are a danger to others. Selecting and retaining the wrong employee can result in significant liability for a non-profit organization.1 And selection must be based solely on lawful pre-employment questions.
Federal law provides that an employer may not use an applicant's race, color, sex, age, national origin, religion or disability as a basis for a hiring decision ("Title VII").2 Accordingly, inquiries on the bases of these categories, or those intended to elicit information about these protected categories, are impermissible. Additional requirements, including Affirmative Action Plans, are required of employers with more than 50 employees and contracts with the federal government amounting to $50,000 or more.3 In addition, most states and some localities prohibit employment discrimination in hiring on the basis of a number of protected characteristics and, as such, limit inappropriate pre-employment inquiries. This manual will include the requirements of the New York State Human Rights Law (NYSHRL)4; New York City Human Rights Law (NYCHRL)5; the Westchester County Human Rights Law6; and the Connecticut Fair Employment Practices Act (CFEPA)7. The rules regarding pre-employment inquiries apply to job application forms, pre-employment interviews and any other type of questioning of persons seeking employment. It is important to keep in mind that the rules also apply when inquiries are made to persons other than the applicant and when inquiries are made by third parties on behalf of the employer.
Generally, it is an unfair employment practice to make any inquiry about an applicant's age, race, creed, color, national origin, sex, marital status, sexual orientation, religion, military status or disability before, during or after employment unless there is a need to do so based on a bona fide occupational qualification.8 Interviewers must be careful that their express questioning, as well as their expressions and actions, cannot be construed to be discriminatory. A good rule of thumb is to ask all applicants, regardless of race, gender, age, etc., the same questions, and to avoid subjective questioning that suggests an inappropriate inquiry. By way of example, several significant areas of inquiry are discussed below. See Pre-Employment Inquiry Guidelines attached as Appendix I.
Employers cannot consider an applicant's disability in connection with the hiring process. The sole inquiry is whether the candidate can perform the essential functions of the job, with or without reasonable accommodation. See the discussion of the American's with Disability Act discussion in Chapter XI.
Although employers may not ask disability-related questions, i.e., questions that are likely to elicit information about a disability, or require medical examinations at the pre-offer stage, they may do a wide variety of things to evaluate whether an applicant is qualified for the job. Note that the employer may not ask questions of third parties that could not be asked directly to the applicant.
The law does not require that employers make accommodations for persons who are not "otherwise qualified" for the job in question. Thus, the first step an employer should take is to determine whether the applicant is qualified for the position he or she is seeking.
The ADA provides that an individual with a disability is qualified for a job if, with or without reasonable accommodation, he or she can perform the essential functions of the job. If the prospective employee is qualified, the employer must then assess whether the accommodation is reasonable. Prior to making a job offer, an employer may inquire into the need for and type of reasonable accommodation required by an applicant (e.g., one who is in a wheel chair) when the employer could reasonably believe that an applicant will need such accommodation to perform the functions of the job. After reasonable accommodations have been identified and agreed upon, the most qualified applicant should be selected regardless of any disability or need for accommodation. As always, selection decisions should be documented.
Under the anti-discrimination laws of New York, it is unlawful to ask general questions concerning an applicant's physical condition or medical history, unless the inquiry is directly related to the position in question.9 In addition, New York law prohibits any person from ordering an HIV test on a person without first getting the person's informed consent.10 Thus, it is unlawful for an employer to condition an offer of employment or continued employment on the applicant or employee's "consent" to an HIV test as such requirement would violate the voluntary nature of the consent provision of the statute.
New York prohibits employers from discriminating on the basis of genetic characteristic and employers are prohibited from making such inquiries. However, an employer may require genetic testing as a condition of employment where such test is shown to be directly related to the occupational environment such that the employee or applicant with a particular genetic anomaly might be at increased risk of "disease as a result of working in [the occupational] environment."11 Thus, a New York employer may deny employment to an application who refuses to be tested for genetic susceptibility, but not because of the test results. If the results indicate susceptibility, the decision whether to work in the risky environment must be left to the employee.
Special requirements for child care workers are outlined in Appendix J.
Under the anti-discrimination laws of New York City, it is unlawful to ask general questions concerning an applicant's physical condition or medical history, unless the inquiry is directly related to the position in question.12
Special requirements for child care workers are outlined in Appendix J.
Under the anti-discrimination laws of Connecticut, it is unlawful to ask general questions concerning an applicant's physical condition or medical history, unless the inquiry is directly related to the position in question.13
Connecticut also prohibits employers from discriminating on the basis of genetic characteristics.14
Special requirements for child care workers are outlined in Appendix J.
An inquiry regarding an applicant's age has strong potential for violating both state and federal legislation. The Age Discrimination in Employment Act of 1967 (the "ADEA"), prohibits private employers with twenty or more employees from discriminating against people who are forty years old or older.15 Thus, while asking for an applicant's date of birth does not in and of itself violate the ADEA, such a request may tend to either deter older applicants or could permit a discriminatory inference of age discrimination if the applicant is not hired. Questions that indirectly reveal an employee's age are also impermissible such as asking an applicant what year he or she graduated from high school or college.
Employers subject to these laws should consider using one of the following alternative statements or questions: (1) a statement on the application that hire is subject to verification that the applicant meets legal age requirements; or (2) "if hired, can you show proof of age?" In addition, the application should include a statement to the effect that the employer does not discriminate based upon age or other improper criteria.16 The function of such a disclaimer is to indicate to the applicant that age information will not be improperly used.
Similarly, the NYSHRL prohibits employers with four or more employees from discriminating against individuals based on age. The NYSHRL protects individuals ages 18 and over.17
The regulations regarding work papers for employees below the age of 18 can be found on the New York State Department of Labor's web site.18
The NYCHRL prohibits employers with four or more employees from discriminating against individuals based on age. The NYCHRL, unlike the NYSHRL and the ADEA, contains no minimum age limitation.19
The Connecticut law prohibits discrimination based on age by employers with three or more employees.20 Thus, inquiries as to an applicant's age should be viewed as inappropriate.
Federal and state laws and the NYCHRL prohibit discrimination in hiring based on sex. An applicant's marital status is considered gender specific information. Therefore, an inquiry as to an applicant's maiden name is inappropriate because it seeks to determine whether the applicant is married. Accordingly, employers should refrain from making such inquiries and should consider asking the following alternative question: "Is there any additional information relative to change of name, use of an assumed name or nickname necessary to check your work and education record? If yes, please explain."
Moreover, while there is nothing under Title VII, state law or the NYCHRL specifically prohibiting an employer from asking an applicant to list his or her dependents, a preference for employees without children could be construed as unlawful discrimination based on sex and/or marital status. Questions of an applicant concerning child care arrangements should be avoided.
Note that, unlike Title VII, the NYSHRL expressly forbids discrimination based upon marital status.21 Therefore, questions seeking the name of the applicant's spouse as well as the names and ages of any children of the applicant are improper. This includes asking an applicant to identify a person to call "in case of emergency" on an employment application. (Of course, this question is permissible once an applicant is employed.)
The NYCHRL also expressly forbids discrimination based upon marital status.22 Therefore, questions seeking the name of the applicant's spouse as well as the names and ages of any children of the applicant are improper. This includes asking an applicant to identify a person to call "in case of emergency" on an employment application. (Of course, this question is permissible once an applicant is employed.)
The Westchester County Human Rights Law prohibits discrimination based upon "familial status."23 This term is not defined, and it is uncertain whether it will be interpreted by the Westchester Human Rights Commission as having the same or a different meaning than the federal and New York State laws.
CFEPA also expressly forbids discrimination based upon marital status.24 Therefore, under state law, questions seeking the name of the applicant's spouse as well as the names and ages of any children of the applicant are improper.
Employers should be sensitive to requesting documents or making oral inquiries that question an applicant's criminal activity. The use of arrest records as a selection technique may be viewed as a violation of Title VII because: (1) rejection of applicants with arrest records has been shown to disproportionately exclude certain minority applicants at a higher rate than white applicants; and (2) an applicant's arrest record is usually irrelevant as a predictor of job performance. In sum, employers should refrain from asking whether an applicant has ever been arrested. Note that under either federal or state law, employers may inquire into criminal convictions of applicants and may deny employment if they can establish legitimate business purposes for their refusal to hire.
See also the limitations on requiring the fingerprinting of applicants and employees for criminal background checks, discussed in Chapter III, Section E.5.
Under the NYSHRL, employers are similarly prohibited from asking an applicant or employee about "any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual."25 The NYSHRL further prohibits employers from seeking such information from any other source, or from using the information as a basis for making employment decisions.
However, under the New York Corrections Law, an employer may inquire as to criminal convictions and deny a license or employment to an applicant who has previously been convicted of a criminal offense when: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought; or (2) the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. The facts an employer must consider include, but are not limited to: the specific responsibilities related to the license or employment; the bearing the offense will have on the applicant's ability to perform his duties or responsibilities; the time elapsed since the offense (there is no specific time limitation), the age of the person at the time of the offense; and the seriousness of the offense.26
Special requirements for child care employees are contained in Appendix J.
Like the NYSHRL, under the NYCHRL, employers are prohibited from asking an applicant or employee about "any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual."27 The NYCHRL further prohibits employers from seeking such information from any other source, or from using the information as a basis for making employment decisions.
Special requirements for child care employees are contained in Appendix J.
As discussed above in Section III.B.4, under Title VII it is not advisable to request information regarding arrests. However, if there are older records which contain this information, in Connecticut the portion of a job application form which contains information concerning the arrest record of a job applicant shall not be available to any employee or member of the organization except the members of the personnel department or the person in charge of employment if the organization has no personnel department.28
It is the policy of the State of Connecticut to encourage all employers to give favorable consideration to providing jobs to qualified individuals, including those who may have criminal conviction records. A person may not be disqualified to practice, pursue or engage in any occupation, trade, vocation, profession or business for which a license, permit, certificate or registration is required to be issued by the state or any of its agencies solely because of a prior conviction of a crime.29 However, after considering: (1) the nature of the crime and its relationship to the job for which the person has applied; (2) information pertaining to the degree of rehabilitation of the convicted person; and (3) the time elapsed since the conviction or release, the state or any of its agencies may determine that the applicant is not suitable for the specific occupation, trade, vocation, profession or business for which the license, permit, certificate or registration is sought. 30
Special requirements for child care employees are contained in Appendix J.
The Immigration Reform and Control Act ("IRCA")31 prohibits intentional discrimination on the basis of national origin or citizenship status. The prohibition applies to employers with 4 or more employees. IRCA also requires employers to verify work eligibility status of all new hires. Employers must ask all new employees for documentation of identity and right to work, known as Form I-9. Approved forms of identification include a U.S. Passport, a "green card," or a combination of a birth certificate or social security card plus a driver's license. Copies of these forms of identification and the Form I-9 should be retained in the employee's personnel records within three business days of hire, or, if the employee is hired for less than three business days, before the end of the employee's first work day. Fines are imposed for violations of IRCA.
Both the U.S. Department of Labor and the U.S. Citizenship and Immigration Service (USCIS, formerly the INS) have the power to ensure that employers comply with the requirement that all new hires have completed Form I-9 and have presented documentation confirming their identity and authorization to work in the United States. Employers, however, violate the law if they request documents not required by the Form I-9 or more documents than required by the Form I-9.32
Unlawful conduct by the employer includes refusing to hire or discharging an employee because of national origin or citizenship, requesting documents not required by the Form I-9, or rejecting apparently valid documents during employment eligibility verification, for the purpose, or with the intent, of discriminating on the basis of citizenship or national origin. Consequences to violating the law could include a civil suit being filed against the employer.33
If an investigation reveals that an employer has engaged in immigration-related discriminatory employment practices then the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) or the Equal Employment Opportunity Commission (EEOC) can take action. The employer may be ordered to take one or more of the following steps: hire or reinstate the individual injured by the discrimination; lift any restrictions on an employee's assignments or movements; post notices to employees about their rights and about employers' obligations; educate all personnel involved in hiring about the employer sanctions and anti-discrimination laws; or remove a false performance review or warning from the employee's files. In addition if it is determined that the employer made an unlawful request for more or different documents than required by the Form I-9, then the employer may be subject to a civil penalty of not less than $100 and not more than $1000 for each individual discriminated against.34
Recently, a program has been implemented to allow employers, in some cases, to utilize government resources to verify the immigration status of individual employees. An intergovernmental information-sharing initiative known as the Systematic Alien Verification for Entitlements (SAVE) program has two components: 1) the Immigration Status Verification for Benefits Issuing Agencies, which enables federal, state and local government agencies to obtain immigration status information they need in order to determine an alien’s eligibility for many public benefits; and 2) the Employment Verification Pilot Programs ("Pilot Programs") enable employers to verify the work authorization of their newly hired employees at a nominal fee.35 The Pilot Programs involve verification checks of the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases to verify the employment authorization of newly hired employees. There are several advantages for employers participating in the Pilot Programs, including removing the guesswork from document review during the Form I-9 process, facilitating the confirmation of employment eligibility of newly hired employees, improving the accuracy of wage and tax reporting, and protecting jobs for authorized workers. It is important to note that participation in the Pilot Programs is voluntary and does not eliminate the requirement for the completion of the Form I-9.6. Sexual Orientation
While not specifically outlawed by federal anti-discrimination law, New York, New York City and Connecticut each have laws specifically prohibiting discrimination on the basis of an applicant or employee’s sexual orientation. Thus, employer’s should steer clear of asking any pre-employment questions that could be construed as violating these provisions.
a. New York Law
Unlike Title VII, the NYSHRL expressly forbids discrimination based upon sexual orientation.35a Effective January 2003, New York’s Sexual Orientation Non-Discrimination Act prohibits discrimination on account of a person’s actual or perceived “heterosexuality, homosexuality, bisexuality, or asexuality.”35b Therefore, questions which may directly or indirectly reveal an applicant’s sexual preference, including “are you married or single,” and “do you have a boyfriend/girlfriend?,” should not be asked.
b. New York City Law
The NYCHRL also expressly forbids discrimination based upon sexual orientation.35c Therefore, questions which may directly or indirectly reveal an applicant’s sexual preference, including “are you married or single,” and “do you have a boyfriend/girlfriend?,” should not be asked. In addition to sexual orientation, the NYCHRL also prohibits discrimination on the basis of one’s “gender identity.”35d
c. Connecticut Law
CFEPA also expressly forbids discrimination based upon sexual orientation status.35e Therefore, as described above, all inquiries which may tend to reveal an applicant’s sexual orientation or preference should be avoided.
7. Military Status - New York Law
The NYSHRL prohibits employers with four or more employees from discriminating against individuals based on their current or past military status. Accordingly, New York employers must also be careful to ensure that their hiring process, including all hiring materials, cannot be viewed as discriminating in this manner.
Employers should be aware that the contents of advertisements for employment are restricted by federal and state laws concerning sex, race, religion, national origin, age and disability. Most anti-discrimination laws prohibit the expression of any preference or limitation based on any protected classification. In addition, if otherwise neutral requirements included in a job advertisement would have the effect of deterring members of protected groups from applying for employment, it is likely that the advertisement will be unlawful, unless the requirement is based on a bona fide occupational qualification.
Thus, employers should have a process for reviewing job advertisements in order to be sure that the advertisements do not include language that could be construed as discriminatory. Such language includes: gender specific language (e.g., "night watchman"), language that could deter older individuals (e.g., "recent college grad") and language that would screen out or tend to screen out disabled individuals on the basis of a disability. To guard against any inference of discrimination that could be drawn from an advertisement, employers may wish to include language such as the following in job advertisements: "We are an equal opportunity employer. We do not discriminate on the basis of race, religion, color, age, sex, sexual orientation, marital or familial status, national origin, alienage or citizenship or disability."36
The employment application is typically the first, and sometimes the only, document generated by the employer that a prospective employee sees. Furthermore, if the employee is hired, the application will remain part of the employee's permanent file. Thus, employment applications should be scrutinized to determine whether questions comply with applicable discrimination laws and to ensure that the content of the application serves the employer's purposes. For example, the employment application can be an effective device in defending an organization in future employment litigation. Thus, the application should clearly set forth the nature of the employment relationship, i.e., whether employment will be at-will. It can also incorporate by reference the company's personnel manual.
It is important that any comprehensive statement as to the employer's rights contained in the employment application should be prominently displayed, in bold type, with the phrase "read carefully" prior to the statement and immediately before the applicant's signature. Similarly, the application should warn the applicant that any false statements or omissions will constitute grounds for termination or rescission of a job offer. The application should require consent to a reference check, criminal background check and, if appropriate, a credit check within the requirements of consumer credit laws. See Chapter III, Section E.1. The application, like the entire pre-employment hiring process, must be scrutinized to ensure no unlawful pre-employment inquiries are being made. A model employment application is annexed as Appendix K.
It is important than only permissible question be asked by the individuals who are doing the interviewing of prospective employees. There are many pre-employment inquiries which are unlawful to be asked of job applicants. A checklist of Pre-Employment Inquiry Guidelines is annexed as Appendix I.
On the preventive side, interviewers should have an established procedure so that there is a consistent interviewing process. Thus, it is suggested that any interviewer checklist include the following subjects:
· A written job description containing all of the elements of the job being sought;
· Description of the salary range and fringe benefit applicable to the position;
· List of the individuals who will interview the applicant; and
· A carefully prepared summary of the interview and evaluation of the candidate, avoiding any comment that might be construed as unlawful discrimination.
Interviewers should be specifically instructed to avoid statements concerning job security, e.g., "you have a job for life as long as you do a good job" and statements which "puff" the job security aspects of the organization, e.g., "we've never had a layoff." Statements such as these may later be used by a terminated employee as evidence of a restriction on the employer's right to terminate employment.
It is also important to remember that instructions given to interviewers are equally applicable to outside recruitment sources.
With the recent enactment of the ADA, employers must be careful to review their hiring procedures to avoid discrimination on the basis of an applicant's real or perceived disability. See Chapter XI.
Moreover, applicants should not be told that they must take a medical examination before any offer of employment can be made. If required of all entering employees in the same job category, an offer of employment can be contingent on the results of a medical examination.37 For example, after an offer has been made by a child care center, a medical examination may reveal that the applicant has a communicable disease or is a current illegal drug user. The offer can then be withdrawn.
During the interview, employers may:
· Describe orally or in writing the duties of the job and ask the applicant whether he or she needs a reasonable accommodation. Also ask what type of reasonable accommodation would be needed to perform the functions of the job where the employer reasonably believes that the applicant will need a reasonable accommodation (because the applicant's disability is obvious, or the applicant has voluntarily disclosed the disability to the employer);
· Inquire as to the experience of the applicant in performing the job applied for;
· Ask for prior references that may include general attendance information, but not medical records or workers' compensation history;
· Notify the applicant that a drug test for "illegal" drugs is a pre-requisite for employment;
· Ask whether the applicant is currently using illegal drugs; and
· Ask whether the applicant has certifications or licenses required for any job duties or whether the applicant intends to get a particular job-related certification or license.
Written descriptions should be developed for every position.38 This is helpful to engage the applicant in a meaningful discussion during the interview, and to protect the employer in the event the applicant is rejected or later discharged on the basis that the minimum qualifications for the position were not met. The job description should include:
A job title which accurately describes the duties and the relative level of importance of the position. Do not give a job a more prestigious title than warranted to compensate for noncompetitive compensation.
The name of the department or position of the supervisor, whether the position is exempt or non-exempt, part-time or full time, regular or temporary.
The purpose of the job and how it fits into the mission of the organization.
The essential functions of the job, including physical functions such as lifting infants and children, getting on the floor, or lifting a specific weight.
The specific job responsibilities, listing the most significant first.
The minimum qualifications for the position, including skills that are critical to successful job performance, and educational degrees, licenses and certifications that are required. Consider using "equivalent experience" as an alternative to a degree. These requirements must be job related.
As illustrated in this section and in Appendix I, it is essential to make sure that interviewers are well schooled with regard to what types of questions to ask and, perhaps more importantly, not to ask. Further, interviewers should understand that their representations to applicants may later bind the employer. It is particularly important to avoid "overselling" job security or making other sorts of guarantees.
Employers should adopt a "checklist" for interviewers to make sure that certain points are covered and to discourage interviewers from straying into impermissible topics. A checklist assures that the same questions are asked of each applicant, so that better comparison of qualifications can be made.
Examples of permissible and impermissible questions, which are applicable to New York and Connecticut employers, are provided in Appendix I to this handbook. 46
Employers may wish to allocate interview responsibility between personnel professionals and management employees, permitting discussions of personnel policies, including terminations, only by the personnel professionals. In smaller organizations, these are the responsibility of the Executive Directors or their designees.
Employers should consider a specific disclaimer of job security as part of the application process, such as that in the Model Employment Application, Appendix K. The employer should ensure that the disclaimer is not ambiguous and is consistent with all other writings distributed to the employee. In the rare instances that an employment agreement is used, it should include an integration clause providing that the agreement sets forth all of the terms and conditions of employment and that no other oral or written promises were made to the applicant. The agreement should also clearly state that the applicant understands that no promise or representation of employment for a specified time was made.
If evaluation forms or notes are used during interviews, they should not be retained in the employee's file. If carefully prepared to avoid any unlawful criteria or discrimination, these documents can be helpful in the event of litigation.
Guidelines issued by the Equal Employment Opportunity Commission should be followed during the hiring process.39 These regulations recommend making reasonable accommodations in the application and interview process itself. For example, interviews should be held at fully accessible locations. If tests are required, it is recommended that an employer give advance notice so that an applicant may request accommodation if necessary. Obviously, tests that are job related and consistent with business necessity are the only tests that should be conducted. Such tests should be available in alternative forms. Finally, applicants who are blind should be allowed to submit application information orally and applicants who are deaf should be provided with sign interpreters. A written job description should be used as the basis for all interviews. Applicants should be given a tour of the work location.
For certain particularly sensitive job classifications, such as child care workers or jobs involving contact with vulnerable clients, where the public safety is an issue, or where money is handled, employers may take additional actions to assure employee integrity. These include conducting an investigative report or "background check," performing drug tests, or using alternative methods of testing honesty. When doing so, employers must respect the applicant's privacy rights.
Numerous federal, state, local and municipal laws require that certain specified organizations perform fingerprint-based criminal background checks on prospective employees. Examples include child care center workers (see Appendix J), nursing home employees, New York City school employees, New York City taxi drivers, etc. Federal law allows "qualified entities" to request fingerprint-based criminal background checks of volunteers and employees, whether or not a specific state law exists allowing for an FBI fingerprint check.40 "Qualified entities" are any businesses or organizations, whether public, private or non-profit, that provide services for children, the elderly or disabled. The law does not require these entities to perform criminal background checks; it only allows them to do so.
See Section B.4 regarding requesting job applicants to provide record of convictions and Section 5 below regarding fingerprinting.
Some employers often desire an investigative report or "background check" on prospective employees. Employers considering this option should be aware that both state and federal law place certain restrictions on the collection of such information.
The Federal Fair Credit Reporting Act ("FCRA")41 regulates agencies that furnish consumer or credit reports to others.
The FCRA was amended by the Fair and Accurate Credit Transaction Act of 2003 (“FACTA”). The current version of FCRA includes the FACTA amendments. FCRA limits the circumstances in which the reporting employer may furnish reports but specifically allows reporting agencies to furnish reports for employment purposes and applies to both consumer credit reports and investigative consumer reports. However, unlike with the FCRA, an exclusion is carved out for communications made to an employer in connection with an investigation of suspected misconduct relating to employment or compliance with Federal, State, or local laws and regulations, the rules of a self-regulatory organization, or any preexisting written policies of the employer.42
An "investigative consumer report" is a report in which information on an individual's character, general reputation, personal characteristics or mode of living is obtained through personal interviews with neighbors, friends, associates or other personal acquaintances.43
Under the FCRA, an employer who requests an investigative consumer report must: (1) notify the employee or applicant any time before the report is procured or caused to be procured, that a consumer report may be obtained for employment purposes, in a document that "consists solely of the disclosure"; and (2) receive written authorization to obtain the report from the applicant.44 See Sample Form under the FCRA, attached as Appendix M.
Before taking an adverse action, the person intending to take such action must provide to the potential employee: (1) a copy of the report; and (2) a description in writing of the rights of the consumer under the FCRA.45 After taking an adverse action, the employer shall disclose a summary containing the nature and substance of the communication upon which the adverse action is based, except that the sources for the report need not be disclosed.46 An “adverse action” in broadly defined to include a denial of employment, or any other decision for employment purposes that adversely affects any current or prospective employee.47
An employer seeking personal information about an applicant or employee should proceed with caution. To avoid potential liability under common law tort theories such as invasion of privacy, defamation, or intentional infliction of emotional distress, the prudent employer should limit the scope of the investigation to uncovering job-related information. Consequentially, the employer should be prepared to demonstrate that the investigation is necessary (i.e. because the employee will be in a security-sensitive or other confidential position) to justify any potential intrusion into the employee's privacy.
In addition to privacy concerns, investigative consumer reports may raise equal employment opportunity issues. A consumer report will almost invariably contain information regarding the financial condition of an applicant or employee. Employers should be aware that use of such reports in making employment-related decisions may have a disparate impact on minority job applicants and, if not job-related, may therefore violate state and federal equal employment opportunity laws. Under the FCRA, a consumer reporting agency shall not make inquiries into preparing an investigative consumer report if the purpose of making the inquiry by the employer or prospective employer is to violate any applicable Federal or State equal employment opportunity laws or regulations.48
Consumer reports cannot contain information on cases under the Bankruptcy Act or Title 11 from 10 or more years back; or civil suits, judgments or records, paid tax liens, accounts placed for collection or charged to profit or loss, or any adverse information (other than convictions of crimes) from more than 7 years back.49 However, this information can be included if the potential employment opportunity is expected to equal $75,000 or more.50
In addition to the notification requirements relating to "investigative consumer reports," the FCRA also regulates "consumer credit reports." A consumer credit report in an employment application context constitutes written, oral or other communications of any information by a consumer credit reporting employer bearing on an individual's creditworthiness, credit standing, or credit capacity, which is used as a factor in evaluating an applicant for employment, promotion, reassignment, or retention as an employee.51 Before requesting a consumer credit report for employment purposes, the user of the report must provide written notice to the person involved that a report will be used and the source of the report.52 This must be done in a document which "consists solely of the disclosure." The employer must obtain written authorization from the employee or applicant to obtain the report. The employer must also certify to the consumer reporting agency that he has made the disclosure to the individual prior to obtaining the report and will follow the correct procedures if the employer asserts an adverse action.53 See Sample Form under the FCRA, attached as Appendix M. A credit reporting agency is prohibited from furnishing information concerning age, marital status, race, color or creed of any consumer for employment purposes.54
Before taking an adverse action, the person intending to take such action must provide to the potential employee: (1) a copy of the report; and (2) a description in writing of the rights of the consumer under the FCRA.55 The rights of the consumer under the FCRA are: (1) the right of a consumer to obtain a copy of a consumer report from each consumer reporting agency; (2) the right of a consumer to dispute information in the file of the consumer; (3) the right of a consumer to obtain a credit score from a consumer reporting agency without charge.56 After taking an adverse action, the employer shall disclose a summary containing the nature and substance of the communication upon which the adverse action is based, except that the sources for the report need not be disclosed.57 An “adverse action” in broadly defined to include a denial of employment, or any other decision for employment purposes that adversely affects any current or prospective employee.58
Even though an employer may follow the procedure set forth in the statutes governing credit checks described above, checks that are not job related might violate Title VII and state law if they have a disparate impact on minority job applicants. Therefore, it is prudent to limit the scope of such inquiries to job related information, or to obtain credit checks only on applicants for positions involving special circumstances such as access to highly confidential or classified information, control over large sums of money, working with vulnerable people or children, or access to customer's homes.
Generally, under New York State, New York City, and Connecticut laws, private employers are permitted to administer drug tests to test prospective employees after an offer of employment has been made. Drug testing, if required by the employer as a condition of employment, should be uniformly required of all applicants for similar positions. The application for employment should make it clear that a drug test will be required, and that any offer of employment will be withdrawn if illegal drug use is established. See the Model Application Form, Appendix K. For a discussion of drug testing policies, see Appendix GG.
See also the discussion of drugs in the workplace in Section VIII.A.
New York's drug testing laws are still evolving. As previously discussed, the NYSHRL prohibits discrimination on the basis of a "disability" or perceived disability when the disability does not actually interfere with the performance of the job. The State human rights agencies, like the EEOC enforcing the ADA, have taken the position that a drug addiction is a disability, and, as such, prohibits employers from discriminating against applicants on the basis of their status as recovered or recovering drug addicts who are not current illegal drug users.59 However, New York law does not protect even "disabled" former drug addicts from adverse employment action based on undesirable behavior, rather than upon the drug use itself. Use of drugs or alcohol or being under the influence while on the job can always be the basis for termination.
Similarly, the NYCHRL also prohibits discrimination on the basis of a "disability" or perceived disability when the disability does not actually interfere with job performance. The City human rights agency has also taken the position that a drug addiction is a disability, and, as such, prohibits employers from discriminating against employees on the basis of their status as a recovered or recovering drug addict.60 However, as with the state law, even "disabled" former drug addicts are subject to adverse employment action based on undesirable behavior, rather than upon the drug use itself.
Although an employer must be careful not to discriminate against an applicant on the basis of disability or perceived disability as discussed above, it should be noted that under the NYCHRL, an employer is permitted to: (1) prohibit the illegal use of drugs or alcohol at the workplace, or on duty, impairment from the illegal use of drugs or alcohol; or (2) conduct drug testing which is otherwise lawful.61
If employers conduct pre-employment drug testing of applicants, they must provide written notice of testing at the time of application and must maintain confidentiality of applicant's results, comply with testing requirements and provide the applicant with a copy of any positive test results.62
Employers' use of sophisticated methods in the employee selection process has intensified since the 1988 passage of the Employee Polygraph Protection Act ("EPPA"), which effectively eliminated most private sector employers from using polygraph tests for the purpose of screening employees.
EPPA covers all private employers "engaged in or affecting commerce or in the production of goods for commerce."63 The application of EPPA to all employers engaged in commerce is significant because it is virtually impossible for an employer in the modern commercial environment to demonstrate that it is not engaged in commerce. Thus, the EPPA bars most private sector employers from requiring, requesting or causing an employee or job applicant to submit to a lie detector test. With limited exceptions, the EPPA also prohibits employers from using, accepting or referring to the results of any lie detector test of any applicant.
The EPPA provides three very narrow exceptions to the general prohibition on polygraph testing. According to the EPPA, a private employer may use a polygraph test when: (1) the employer is conducting an ongoing investigation involving economic loss or injury to the employer's business; (2) the employer is a security service provider; or (3) the employer is authorized by the Drug Enforcement Administration to manufacture controlled substances.64
No employer can require an employee or applicant to submit to a "psychological stress evaluator examination" or use the results of such an exam for any reason whatsoever.65
New York City has no law specifically regulating the use of polygraph examinations.
Under Connecticut Law, an employer cannot request or require an applicant or employee to take a polygraph test as a condition of obtaining or continuing employment and may not discipline an employee in any way for failing a test or refusing to take it.66
The 1998 Federal Volunteers for Children Act, amending the 1993 National Child Protection Act,67 allows "qualified entities" to request fingerprint-based criminal background checks of volunteers and employees, regardless of whether a specific state law exists allowing for an FBI fingerprint check. "Qualified entities" include any business or organization, public private, non-profit or voluntary, that provides services for children, the elderly, or the disabled. The law only permits, and does not require, these entities to perform criminal background checks.
The fingerprinting of employees as a condition of securing employment or of continuing employment is prohibited, except for state and municipal employees, most hospital employees, and as otherwise provided by law. Other laws require the fingerprinting of childcare workers. See Appendix J.
Generally, Connecticut has not enacted statutes that protect employees from being subject to fingerprinting by their employer. Furthermore, there are numerous types of employees that Connecticut statutorily requires to be fingerprinted by employers. Of potential relevance to Connecticut non-profit agencies, these types of employees include: (1) all prospective and actual employees of a child day care center or group day care home;68 (2) all prospective and actual employees of a family day care home in a position requiring the provision of care to a child;69 (3) private detectives, investigators, watchman, guards and patrol service employees;70 (4) any employee who will be operating a school bus;71 and (5) any employee who will be a driving instructor.72
Employers seeking employees where honesty is a significant job requirement want to use honesty tests to combat employee theft and counterproductive behavior. Since the enactment of the Employee Polygraph Protection Act prohibiting most use of polygraphs, there has been a dramatic rise in employers' use of alternative methods to test for job applicant honesty. The most popular alternatives to polygraph testing are the so-called pen and pencil honesty tests. Although honesty tests vary widely in format and content, generally they test for the following:
· Admissions of illegal or unacceptable activities;
· Opinions about illegal or "disapproved" behavior;
· Descriptions of the individual's personality and thought patterns; and
· Reactions to hypothetical situations.
Employers who decide to use honesty tests as an employment selection device must ensure that the tests do not have an adverse impact upon applicants in violation of federal and state discrimination laws. Further, if a selection technique does adversely impact applicants, an employer has the burden of showing that the selection device correlates positively with success on the job.
It is recommended that an offer of employment be communicated in writing so there is no misunderstanding regarding the essential terms and conditions of the offer. The wording of the offer should be carefully reviewed to avoid creating unintended rights to job security that may undermine "at-will" employment and impact the employer's ability to terminate the employee at any time. See Chapter II. For example, if an individual is going to serve a probationary period, the offer should set forth this fact clearly. A clear job description should be included in the offer. Further, the offer should indicate that the offer is contingent upon the availability of the position at the time the individual is to commence employment as well as subject to the other personnel practices of the organization, such as a medical examination and drug test. A Sample Offer Letter is included as Appendix L.
1 The Nonprofit Risk Management Center publishes a guide on the employment screening process, Staff Screening Tool Kit: Building a Strong Foundation Through Careful Staffing. See http://www.nonprofitrisk.org.
2 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000 et seq.
3 Executive Order 11246; Section 503 of the Rehabilitation Act. 29 U.S.C. § 791, subsection 503. Employers with federal contracts of $10,000 or more must comply with the Vietnam Era Veterans' Readjustment Assistance Act, 38 U.S.C. § 4212, which also requires Affirmative Action Plans. The Office of Federal Contract Compliance Programs administers these programs.
4 N.Y. Exec. Law § et seq. New York's Department of Human Rights has published recommended pre-employment inquiries which are available through http://www.nysdhr.com/complaints.html.
5 N.Y.C. Admin. Code § 8-101 et seq.
6 Westchester County Local Law No. 17-1999.
7 Conn. Gen Stat. § 46a-51 et seq.
8 The Federal Immigration Reform and Control Act of 1986 ("IRCA"), which makes it illegal to hire aliens not authorized to be employed in the United States, should also be considered. See Section III.B.5.
10 See N.Y. Pub. Health L. § 2780 et seq.
12 N.Y.C. Admin. Code § 8-107.
13 Conn. Gen. Stat. § 46a-60(a)(1).
14 Conn. Gen. Stat. § 46a-60(a)(11).
16 See the Model Employment Application in Appendix K.
17 N.Y. Exec. Law § 296(3-a)(a).
18 http://labor.state.ny.us/html/workprot/minor.htm
19 N.Y.C. Admin. Code § 8-107.
20 Conn. Gen. Stat. §§ 46a-51(10); 46a-60(a)(1); and 46a-60(b)(1)-(4).
21 N.Y. Exec. Law § 296(1)(a).
22 N.Y.C. Admin. Code § 8-107(1)(a).
23 Westchester County Local Law No. 17-1999.
24 Conn. Gen. Stat. § 46a-60(a)(1).
25 N.Y. Exec. Law § 296(16). The NYSHRL contains certain exemptions for law enforcement officers that allow employers to inquire into prior arrests or detentions.
26 N.Y. Correct. Law §§ 750, 752(1) & (2), 753.
27 N.Y.C. Admin. Code § 8-107(11).
28 Conn. Gen. Stat. § 31-51(i).
30 Conn. Gen. Stat. § 46a-80. If a conviction of a crime is used as a basis for rejection of an applicant for a license or employment by a state agency, the rejection must be in writing and specifically state the evidence presented and reasons for rejection. A copy of the rejection must be sent by registered mail to the applicant.
31 8 U.S.C. § 1324(a), http://www4.law.cornell.edu/uscode/8/1324a.html.
32 8 U.S.C. § 1342b(a)(6).
33 8 U.S.C. § 1324b.
34 http://uscis.gov/graphics/lawsregs/handbook/hand_emp.pdf.
35 http://www.vis-dhs.com or call the SAVE program at 1 888-464-4218, fax a request to 202 524-9981, or write to the Department of Homeland Security, SAVE Program, 20 Massachusetts Ave., NW, ULLICO Building 4th Floor, Washington, DC 20529.
35a N.Y. Exec. Law § 296(1)(a).
35b N.Y. Exec. Law § 292 (27).
35c N.Y.C. Admin. Code § 8-107(1)(a).
35d N.Y.C. Admin. Code § 8-107(1)(a); N.Y.C. Admin. Code § 8-102(23).
35e Conn. Gen. Stat. § 46a-81c
36 Under the New York City Human Rights Law, sexual orientation, alienage and citizenship are protected classifications, applicable to all aspects of the employment relationship in the five boroughs of New York City. N.Y.C. Admin. Code § 8-100. Westchester County also prohibits discrimination based on sexual orientation and familial status. Westchester County Local Law No. 17-1999. Under Connecticut law, it is also unlawful to discriminate on the basis of sexual orientation, any present or past history of mental disorder, mental retardation, learning disability, or physical disability, including but not limited to blindness. Conn. Gen. Stat. § 46a-60.
37 N.Y. Labor Law § 201-b makes it unlawful for an employer to require applicants for employment to pay the cost of a medical examination. It is also generally unlawful to require existing employees to pay for a medical examination or health certificate.
38 Independent contractors and consultants should not have job descriptions. A contract is used to set forth the nature of their services and compensation. See Chapter IV.
39 The New York State Division of Human Rights' Pre-Employment Inquiry Ruling is available through http://www.nysdhr.com/complaints.html.
40 29 CFR Part 1630. The EEOC's enforcement guidance on disability related inquiries and medical examinations of employees under the ADA is available at http://www.eeoc.gov/docs/guidance-inquiries.html.
41 The 1998 Federal Volunteers for Children Act, 42 U.S.C. § 5119(a), amending the 1993 National Child Protection Act.
42 15 U.S.C. 1681 et seq., http://www4.cornell.edu/uscode/15/1681.html.
45 See 15 U.S.C. § 1681b(b)(2)
57 1681b(b)(3)(A); 1681g(c)(1).
59 15 U.S.C. §1681a(k)(1).
60 See N.Y. Exec. Law. § 296. This protection does not extend to current users of illicit drugs. Burka v. New York City Transit Auth., 680 F. Supp. 590 (S.D.N.Y. 1988).
61 N.Y.C. Admin. Code § 8-107(1)(a).
62 N.Y.C. Admin. Code § 8-107(15)(c).
63 Conn. Gen. Stat. § 31-128c. See Section IX.D.2 regarding confidentiality of employee medical records.
64 29 U.S.C. § 2002.
65 See 29 U.S.C. § 2006.
66 N.Y. Lab. Law § 735.
67 Conn.Gen.Stat. § 31-51g.
68 42 U.S.C. § 5119(a).
69 Conn. Gen. Stat. § 19a-80.
70 Conn. Gen. Stat. § 19a-87(b).
71 Conn. Gen. Stat. § 29-155; 29-156(a).
72 Conn. Gen. Stat. § 14-44.
73 Conn. Gen. Stat. § 14-73