CONNstruction - Winter 2008 - (Page 15)

newsandviews Internet Searches and Job Applicants Prospective employers who rely exclusively on resumes and job interviews to make hiring decisions face a problem – a significant number of applicants lie about their work histories, education, or credentials. In addition to the problems connected with finding qualified applicants, employers face potential liability under a theory of negligent hiring if their employees harm others – a theory recognized in Connecticut. Although employers are granted considerable leeway as to the questions they may ask a prospective employee in interviews, there are a number of restrictions on the type of information employers may request. In particular, companies may not ask questions that would allow the employer to screen out applicants based on protected class status, i.e. race, religion, marital status, sexual orientation etc. While most states, including Connecticut, do not prohibit employers from considering criminal convictions in the hiring process, some states prohibit considerations of arrests. Connecticut does not bar this, but does prohibit distribution of arrest information internally. Employers also face restrictions in the use of ability, integrity, and personality tests. As with preemployment applications and interview questions, employers may not use tests as a means to discriminate against protected classes. For example, in Griggs v. Duke Power Co., the U.S. Supreme Court held that a seemingly neutral aptitude test to screen applicants disqualified a disproportionate number of black applicants. As a result, the test was deemed to be illegally discriminatory when the employer could not establish a legitimate business necessity for the test. The EEOC By Jack Leahy CCIA Director of Labor Relations and Human Resources has issued guidelines that require that the selection procedure be linked to attributes of successful job performance. Employers can conduct their own background investigations with minimal legal oversight, but must avoid being overly intrusive. If outside firms are used to gather the information and credit reports, under the Fair Credit Reporting Act, applicants must be notified if a credit report is used in hiring decisions. Under the Americans with Disabilities Act employers can’t use workers’ compensation claims information in hiring, and the Bankruptcy Act prohibits employers from discriminating with respect to employment against individuals seeking or who have sought bankruptcy protection under the Act. In addition to the statutory restrictions noted above, employers are also rightfully concerned about tort liability. Invasion of privacy and defamation claims are brought against both prospective employers and former employers responding to reference checks. While these claims are most often unsuccessful, employers are justifiably concerned with the cost of successfully defending these claims. Given the restrictions facing employers in investigating the background of applicants, some have turned to the Internet to investigate prospective employees. There is a great deal of information that people have provided about themselves on the Internet, and many employers have begun to use that information. For example some firms search social networking sites for information about recent college graduates who are applicants and sometimes find embarrassing photographs and comments about drinking, recreational drug use and sexual exploits. The information being obtained from the Internet is open to the public and employers are receiving information about candidates that would otherwise be prohibited in traditional applications and interviews such as the age, marital status, or religion of an applicant. If employers use this information to screen out applicants that they would otherwise be prohibited from using, they face potential liability. One solution is to have a non-decision maker conduct the Internet search and screen out information relating to protected characteristics. Another approach is to avoid use of Google when making a hiring decision. One more thing – if you have kids in high school or college, you might suggest that they be careful what they post in Facebook or MySpace. CONNstruction / Winter 2008 / 15

Table of Contents for the Digital Edition of CONNstruction - Winter 2008

CONNstruction - Winter 2008
The Next Phase of Contracting Reform
A Return to Trust – Partnering
Building Our Future and Theirs
New “Green Buildings” Law Presents Opportunities and Challenges
Internet Searches and Job Applicants
First Impressions
ConnDOT Hosts the Nation’s Transportation Officials
Reducing our Environmental Footprint
Connecticut Apprenticeship Program Handles Industry Changes and Demands for New Workers
2008 Construction Career Days Program
Contractors Must Become More Diligent During Workers’ Compensation Rate Decline
UCAC General Membership Meeting/Lifetime Achievement Award
John “Jack” Costello Memorial Scholarship
Marvin Morganbesser’s Retirement Dinner
Index to Advertisers

CONNstruction - Winter 2008