Hiring: Damned If You Do...

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Finding and hiring the right employees is already one of the toughest challenges facing today's employers. And it seems that every time employers devise a strategy to make that process easier, they discover laws and regulations that interfere.

Take two of the most common techniques employers use as part of their screening processes. First, they don’t want to hire convicted criminals, so they include a simple box on the employment application that asks whether the candidate has ever been convicted of a crime. Second, given the general population’s willingness to share every aspect of their lives through social media, many employers use that publicly available information to peer into the lives of applicants.

In many places, that little yes-or-no box is now flatly illegal. So-called “ban the box” laws (including the executive order Gov. Holcomb signed in June, which applies to many state jobs) prohibit employers from asking about criminal convictions on applications. If you’re a branch manager for a bank who’s seeking a new teller, the application gives you no way of knowing if an applicant is a serial bank robber. You can ask that question during an interview for the position, but in places where “ban the box” has been enacted, you can no longer use it as a way to narrow your stack of applicants.

The motive is laudable. The Justice Department estimates that 1.12 million Hoosiers have some kind of a criminal record, and thousands of men and women walk out of Indiana correctional institutions each year, having served their debt for whatever violated society’s norms. Many of those individuals will never commit another crime, and landing a job is an important part of continuing as upstanding citizens. They’re looking to employers like you to give them a second chance.

But some of those who are released will re-offend, and it’s understandable that employers don’t want to unwittingly make themselves or their employees and customers potential victims. (Memo to legislators: it would be nice if the state also gave employers willing to offer that second chance some degree of legal protection.)

So if you want to know more about candidates and can’t ask delicate questions on the application, why not simply enter their names in Google and see what comes up? According to CareerBuilder’s annual survey, nearly 60 percent of employers do just that, an increase of 500 percent over the past decade. Interestingly, the two fields with the greatest use of social media checking are IT (with 76 percent of employers peeking at profiles) and Sales (65 percent). Just as interesting, 41 percent of employers CareerBuilder surveyed said they were less likely to interview a candidate if they couldn’t find online information!

On the surface, checking a candidate’s social media may not be illegal per se, but you’re stepping on dangerous ground. As an employer, there’s a whole series of questions you’re prohibited from asking on an application. When you look at someone’s Facebook or Instagram profile, you can instantly get answers to those prohibited questions. What race is the applicant? How old? Married? Religion? All that information is dangling out there, tempting HR managers who are trying to be thorough, and yet they’re not supposed to use it.

For employers, it’s become one of those “damned if you do, damned if you don’t” situations. You want to know as much as you can about the people you’re thinking of hiring so you can protect your business, and there are easy ways to get the answers you need. Unfortunately, you’re not allowed to use those easy ways. Generally speaking, the law is shifting to protect candidates as long as possible during the hiring process.

It’s not hopeless for employers, but it does require extra work. If you still believe in screening candidates, you need to move that process from the application stage to after the interview. You can make a conditional job offer that’s contingent on the results of background screening (and drug testing or other specific measures). Yes, it will take more time and may mean eliminating more candidates after you’ve extended offers, but it will protect you and the candidates’ rights.

Finally, if you insist on digging through social media profiles as part of the process, protect yourself by making sure that your HR department and hiring executives don’t do it. Assign the initial search to a vendor or your IT department and have them block out anything those with hiring responsibilities are not supposed to see.

Mike McCarty is CEO of Danville-based Safe Hiring Solutions 

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