MIAMI, FL — Attorney Richard D. Tuschman, a member of the litigation department in the Miami office of Baker & McKenzie, the leading international law firm, is offering tips for avoiding liability in the hiring process. Tuschman, who specializes in employment law matters, says there are two principle federal laws restricting an employer’s inquiries during the hiring process — the Americans with Disabilities Act (ADA) and the Fair Credit Reporting Act (FCRA).
“These laws protect employees’ privacy concerns and are very specific in their requirements. Failure to comply may subject an employer to an expensive, time-consuming lawsuit,” Tuschman says.
Under the ADA, employers are forbidden from asking about the existence, nature, or severity of a disability and may not require a medical examination until a conditional offer of employment has been made. The following are some examples of topics employers should not ask during interview or reference checks:
- Don’t ask about current or past disabilities, or about any conditions or diseases for which they have been treated, including back problems or mental illness
- Don’t ask whether an applicant has ever requested or needed assistance in performing past jobs
- Don’t ask whether the applicant has any disabilities or impairments that may affect performance in the position
- Don’t ask about past drug or alcohol use
Tuschman also suggests staying away from questions about past on-the-job injuries or whether the individual has ever received workers’ compensation benefits. Also, employers should not ask about previous hospitalizations or the use of prescribed medications.
Employers can ask about the applicant’s ability to perform essential job functions and about current use of illegal drugs or alcohol use. Also allowed are questions about qualifications required for the position — education, experience, licenses, and basic reading, writing, and mathematical skills.
FCRA, the second federal law, governs companies’ use of credit reports. Employers can request an applicant’s credit and driving records as well as their criminal history. However, the employer is required to obtain the authorization of the job applicant or employee before requesting any information, and there are very specific requirements regarding the use of such reports.
“FCRA applies to all employers who use outside agencies to obtain `consumer reports,’ which include any written, oral, or other form of communication where the reporting agency gives background on the person’s character, reputation, and credit capacity. It also refers to any other details used to establish the applicant’s eligibility for employment purposes,” Tuschman goes on to say.
In conclusion, Tuschman summarizes the guidelines for FRCA compliance:
- Obtain applicant’s consent before ordering any background checks.
- Notify the applicant of negative report before taking action.
- If the applicant does not respond to notification within a reasonable time period, proceed with decision.
- Notify applicant of adverse action.
Tuschman is available to elaborate on the ADA and FRCA federal laws and to offer additional tips for employers for avoiding liability. Baker & McKenzie opened its first office in 1949 in Chicago, and today has 64 offices in 35 countries. It established a global presence more than 25 years ago, with an office in each of the world’s major money centers. The Firm currently has 612 partners, 3,169 lawyers, and a total of almost 4,200 legal professionals. The chairman of the international firm is Christine Lagarde. For more information, visit http://www.bakernet.com. Baker & McKenzie posted record financial results for FY01, with a global fee income figure of US $1 billion.