COVID-19 has turned typical recruiting and the overall economy upside down. As a result, almost every industry has been forced to “adapt” and figure out how to recruit and maintain a workforce. With recruitment efforts occurring solely online, keeping tabs on the legality of a process can be even more difficult.
There may be an additional limitation on inquiries to applicants on the horizon. The “Workforce Justice Act” (the “Act”) was introduced in Congress earlier this month. If signed into law, it would prevent all employers nationally from asking about an applicant’s criminal history at the initial stage of a job application. Commonly known as “ban-the-box,” this legislation seeks to remove the initial exclusion of applicants with a criminal record (while still allowing a criminal background check at a later stage of the application process). This limitation aims to minimize the damage caused by years of systemic racism in the criminal justice system.
Although the Act is not yet law federally, its introduction serves as a good reminder to keep the following tips in mind for recruiting processes:
1.Start planning to remove questions about criminal background from initial applications now.
Ban-the-Box is already law in the District of Columbia and Maryland. In 2020, Virginia enacted a less restrictive version that still precludes all employers from inquiring about marijuana-related convictions during the initial stages of the recruitment process. Even without a federal law, the reality is that asking about criminal background in the D.C.-region may be a significant liability for an employer.
2. Don’t forget about existing equal employment requirements.
While ban-the-box is a relatively “new” requirement, several existing employment laws may be lost in the shuffle during virtual recruiting. Of note are limitations on the ability to exclude an applicant from the job pool because of their race, disability, or gender (including pregnancy). Significantly, employers should remember that a virtual interview still requires that they respond to any requests for reasonable accommodations made by applicants (whether it be for disability or religion).
3. Think about what and how you say things.
In the virtual era, almost everything is recorded, whether it is via an application or a participant. Further, discussions that occur via a recorded platform (i.e., Zoom) after an interview is conducted can be a liability for employers even if they are not apart of the actual interview. A manager indicating that they dislike an employee because of their inherent characteristics (i.e., race or pregnancy) can cause significant legal exposure to a company if a discrimination claim is pursued. Best practice is to keep all discussions professional and assume that it is being recorded.
Unclear about whether your current recruitment efforts pass legal muster? Feel free to reach out to me to discuss.
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Theodora Stringham assists individuals, businesses, and organizations with growing successfully while minimizing liability. Focusing on real estate and personnel needs, Ms. Stringham executes sustainable plans for real estate development and employee matters. She provides comprehensive representation for everyday growth issues, including, but not limited to, re-zonings, site plan approvals, eminent domain/valuation concerns, employment discrimination, and disciplinary issues. Ms. Stringham’s scope of representation ranges from identifying potential liability and providing counseling/trainings, all the way through representation at trial.
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