Preemployment Screening and Testing: Federal

Authors: Anthony J. Oncidi, Natalie A. Rainforth and Adam W.G. Freed, Proskauer Rose LLP

Summary

• To protect against negligent hiring lawsuits, an employer should conduct background checks and employment verifications with the utmost care. At times, however, this process can be at odds with employee privacy laws. Additionally, Ban the Box laws make it difficult in some jurisdictions to obtain criminal background information about prospective employees early in the hiring process. See Background Checks.
• Federal and state law restrict the use of credit information for employment purposes. Good credit requirements may be challenged under Title VII of the Civil Rights Act as having a disparate impact on minority applicants if there are no legitimate business reasons for maintaining them. See Credit Checks.
• The Fair Credit Reporting Act limits the information employers can obtain about employees and applicants through outside consumer reporting agencies. See Fair Credit Reporting Act.
• Federal law prohibits employers from hiring individuals who are not authorized to work in the United States. Electronic verification systems can help employers determine whether a new hire is authorized to work in the country. See E-Verify.
• Employers may not discriminate against job applicants in the preemployment screening and interviewing process. Employers should follow Equal Employment Opportunity Commission (EEOC) guidance and their state agency's own anti-discrimination regulations regarding permissible questions to ask candidates. See EEOC Guidelines.
• Preemployment testing for illegal drugs, even medical marijuana, generally is permitted so long as it is nondiscriminatory and adheres to certain standards. However, alcohol testing may only take place after an employment offer is made, and must be job-related and consistent with business necessity. See Drug and Alcohol Testing Programs.
• Prior to extending a job offer, an employer may ask questions concerning whether the applicant is currently using, or has previously used, alcohol or drugs illegally. But the employer cannot ask how frequently or in what quantities the applicant used drugs or alcohol, or any question likely to elicit information about a past addiction. See Drug and Alcohol Inquiries.
• An employer may not conduct medical examinations prior to an offer of employment, but it may do so after an offer has been made if the examinations are done for all applicants entering into a particular job category, so as not to unlawfully discriminate against individuals who have, or are perceived to have, disabilities. The examinations also must be job-related and consistent with business necessity. Genetic testing is not permitted of job applicants. See Medical Testing.
• Physical fitness examinations are permitted prior to an offer of employment if they do not amount to a medical examination. Fitness examinations that do amount to medical examinations may be conducted after the offer is made, so long as they are job-related and consistent with business necessity. Employers should be wary, though, of fitness tests that create a disparate impact without serving a legitimate business purpose. See Physical Fitness Testing.
• Intelligence testing is permitted so long as it does not discriminate against a protected class without having a legitimate business purpose. An employer may not throw out tests that favor majority groups unless they have a strong basis in evidence that using the test would lead to disparate impact liability. See Intelligence Testing.