A significant part of the hiring process is managing the plethora of rules from state and federal government and other regulatory organizations. To protect yourself and your company from fines and legal action - while safeguarding the rights of employees and potential hires - it is crucial that all the forms you use meet current regulations.

"The last thing you want is for your application forms to be non-compliant or possibly discriminatory," says Hire Image CEO Christine M. Cunneen. "To avoid unnecessary difficulties, limit the information you ask for during the pre-employment process to only that which is essential for determining if the candidate is qualified for the job. At Hire Image, we do a thorough review of our clients' application forms and procedures to eliminate problematic questions and protect them from risk." Here are a few tips to help your company avoid pitfalls.

Avoid Discriminatory Questions and Resulting Legal Woes

Asking discriminatory questions in the pre-hiring process can cause legal problems. The following information cannot be requested: race, sex, national origin, age, religion, disability, and in most states, sexual orientation. Avoid questions such as:

• What is your native language? Instead, ask "What languages can you read, speak or write?"
• Where were you born? If necessary, ask "Are you able to furnish the documents required by the Immigration Reform and Control Act?"
• How many days were you out sick last year? An acceptable alternative would be, "How many days were you absent from work last year?"

The consequences of asking discriminatory questions can include compensatory and punitive damages as high as $500,000, depending on the number of employees in the company.

Check Your Filing and Storage Methods

The way hiring information is documented and filed is subject to specific rules. Certain information must be kept separate from personnel files in order to protect the employee's privacy or to prevent potential discrimination. Other information must be provided separately from an employment application.  

For example:

• The EEOC states that if your company gathers information on race for affirmative action purposes and/or to track applicant flow, you may obtain the necessary information but must also simultaneously guard against discriminatory selection. The EEOC recommends using a mechanism such as "tear-off sheets" which allow the employer to separate the race-related information from the information used to determine if a person is qualified for the job.
• The signed background search authorization and disclosure form must be a separate document from the application for employment. The FCRA Summary of Rights should be provided to the applicant at the same time the authorization and disclosure is given.
• Employment Eligibility Verification Form I-9 should be kept in a confidential file, separate from the employee's personnel file. If an audit occurs and an employee's I-9 is not on file, the employer may be fined up to $10,000 per employee whose I-9 is not available. (See Alert! below for more about Form I-9.) The rationale is that if an employee was turned down for a position or promotion because a manager inadvertently saw confidential information that prejudiced his/her judgment, the employee has been discriminated against and is entitled to legal remedies.

Don't Risk Non-Compliance - Let Hire Image Help

Should a disgruntled employee bring a discrimination suit because your company gathered and possibly used improper information, your company could face litigation, fines, damages and court costs. Additionally, unfavorable publicity and poor morale could affect the productivity and marketability of your company for years to come.

Don't risk being fined or sued for using a non-compliant application or form. If you're unsure of whether your application and forms are compliant, Hire Image can audit your hiring and record-keeping process. Put our expertise in all aspects of background screening to work for you.