White Paper
Employee Screening Procedures
Telios Law PLLC
19925 Monument Hill Rd. | Monument, CO 80132
ph. 855-748-4201 | f. 775-248-8147
This white paper outlines the requirements of the major federal laws, addressing what an employer may and may not do during a candidate screening process. It then explores how issues of liability may arise from improperly implementing an employee hiring process.
I. Federal and State Laws Addressing Employee Screening
Several federal laws regulate how employee screening may be conducted. Principally, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and Title VII of the Civil Rights Act of 1964 control how an employer can screen potential employees.
A. Americans with Disabilities Act (ADA)
The ADA prohibits discrimination against individuals with disabilities and restricts disability-related inquiries and medical examinations across three stages: pre-offer, post-offer, and employment.
1. Pre-Offer Stage
Employers may not conduct medical examinations or ask disability-related questions. This includes psychological tests designed to identify mental disorders. However, non-medical assessments such as personality or skills evaluations are generally allowed.
2. Post-Offer Stage
After a conditional offer, employers may conduct medical examinations if applied consistently to all candidates in the same role. The offer must be legitimate and based on non-medical qualifications.
3. Assessments During Employment
Medical or psychological assessments during employment must be job-related and consistent with business necessity, typically triggered by performance concerns or safety risks.
4. Safeguarding Information
Medical information must remain confidential, stored separately, and only shared with authorized individuals.
B. Genetic Information Nondiscrimination Act (GINA)
GINA prohibits employers from collecting or using genetic information, including family medical history, in employment decisions. Even requesting such information may violate the law.
C. Title VII of the Civil Rights Act
Title VII prohibits discrimination based on race, color, religion, sex, and national origin. Screening procedures that disproportionately impact protected groups may result in liability.
This includes policies such as blanket criminal record exclusions, which may create disparate impact concerns.
D. Other Important Laws
1. Fair Credit Reporting Act (FCRA)
Employers must obtain consent before conducting third-party background checks and provide notice regarding use of the information.
2. Age Discrimination in Employment Act (ADEA)
The ADEA prohibits discrimination against individuals aged 40 and older. Questions about age during screening may indicate discriminatory intent.
3. State and Local Laws
Additional laws may apply depending on jurisdiction, including “ban-the-box” laws that limit when employers can ask about criminal history.
E. Other Liability Issues Connected with Pre-Employment Screening
1. Practicing Psychology Without a License
Conducting psychological testing without proper licensing may expose organizations to liability, even if claims are ultimately unsuccessful.
2. State-Specific Claims
Invasive screening may violate privacy rights under state law, particularly if not job-related.
3. Negligent Supervision and Retention
Both inadequate screening and failure to act on warning signs can expose organizations to liability.
II. Conclusion
A solid employee screening protocol is essential for organizations. While thorough screening helps ensure qualified hires and protects the organization, improper implementation can create significant legal risks.
Organizations should consult legal counsel to ensure compliance with applicable laws and best practices.