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The Hiring Matrix
Over that
past couple of years we have had several requests
from clients to setup a "Hiring Matrix" to help make
their hiring decisions more consistent. In addition,
we have even been asked by some to apply these
"Matrix Decisions" and just give the results to
them. In virtually all cases, we have declined.
Developing a "Hiring Matrix" or what is also called
an "Adjudication Module" on the surface seems like a
good idea. You would just look at the matrix,
compare the results of the background check to it
and you would have your answer - Hire or Don't Hire.
Well, it's not that simple.
The Equal
Employment Opportunity Commission (EEOC) has
increased its monitoring of the hiring practices of
companies who use this type of hiring decision to
screen out applicants based on a blanket policy.
When it comes to applicants' credit or criminal
records, if their information has no relevance to
their ability to perform their job it is especially
important to take a closer look.
The
EEOC's decision against the Freeman Companies of
Dallas in 2009 made it very clear that using these
hiring practices violated Title VII of the Civil
Rights Act. The EEOC claimed that Freeman had used
credit histories and criminal records to unlawfully
"deprive a class of black, Hispanic and male job
applicants of equal employment opportunities and
otherwise adversely affect their status as
applicants because of their race, national origin
and sex." The agency's guidelines state that such
policies "disproportionately exclude members of
certain racial and ethnic groups, unless the
employer can demonstrate a business need for the use
of this criteria."
Although
these matrices are designed to help make the hiring
decision easier and more consistent, it makes it
much more complicated when you take into account all
the variations that can come up as well as all the
inconsistencies in the county and state records. For
example, if your Matrix states that you would
automatically turn an applicant down for having a
felony criminal record, what do you do when a record
turns up as a misdemeanor from one state that is a
felony in another?
Several
states have now passed legislation called "ban the
box" laws that prohibit public employers from asking
about the criminal history of applicants on their
initial applications. This prevents the employer
from automatically disqualifying an applicant who
admits to having a criminal record. These include
Massachusetts, Connecticut and New Mexico.
More and
more states are passing laws to help eliminate these
issues. Four states have now passed laws regulating
the use of credit reports in the hiring decision.
Most still allow the use, but require that credit
reports only be used when you can show that it is
related to the job requirements. The first states to
pass this law were Hawaii, Oregon and Washington.
Illinois new law went into effect on January 1,
2011. There are almost a dozen other states that are
currently trying to pass this same type of
legislation. (For more information on these state
laws, please reference our previous e-Updates on
each)
As with a
credit report, many states also require that an
applicant not be turned down for a job based on a
criminal record unless the record is "substantially
related to" or "directly related to" the job duties
for the position they are seeking. This makes a
"Hiring Matrix" very difficult to administer without
a different matrix for every position.
The idea
of having your screening company make these
decisions for you, based on your matrix, makes
little sense. Although many companies feel that they
are
relieving themselves
of the burden of making the decision and, in some
cases, feeling they are relieving themselves of the
liability if anything goes wrong, that is not the
case. Any screening company that would be willing to
make these decisions for you would want a
complete waiver of liability. Why would any company
want to give up the ability to look at all the
information on a job applicant and make their own
decision? We can't think of one.
So, with
all this, what can you do if you want to use a Job
Matrix?
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If you are going to develop any type of matrix,
you need to ensure that it is not a "one size
fits all." You need to look at every position
and ensure you are taking everything into
consideration before you apply it.
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Your legal department should be involved in the
development of the matrix, since they will be
the ones who may have to defend it. Also, they
may be more familiar with EEOC guidelines as
well as the variations in penal codes and
classifications of crimes from state to state.
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Ensure that any information you use to
disqualify an applicant for a position is
relevant. Rarely should a blanket policy be used
to disqualify an applicant. A sex offender
should never work unsupervised around children,
is an example of a valid blanket policy.
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Never give the hiring decision to someone else
to make for you.
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It is very important that you always review ALL
the information in a background check prior to
making a hiring decision. Every hiring decision
should be made on a case by case basis.
Keep in mind that the credit and/or criminal
backgrounds are just part of the background check.
Just because applicants have something in their past
does not mean they would not make a good employee
for you. It is important that you always consider
the information obtained during the hiring
interviews, skills and aptitude tests, as well as
consider their personal experience and character in
making a proper hiring decision.
Also always keep in mind that if you are taking any
Adverse Action based on a consumer report it is
important to follow the proper FCRA Guidelines for
this process. (See
our articles about that by clicking here) |
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e-Update
Employment Screening Services, Inc.
e-Update@employscreen.com
1-800-473-7778
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