Applications, Interviewing, Reference Checks and Background Checks
The application process generally includes publishing the open position and accepting applications. Every help-wanted advertisement should contain an equal employment opportunity statement. Discrimination laws prohibit certain questions on the application, particularly those that elicit information about a personís protected status and are not job related.
The interviewing process generally involves interviews and may involve reference checks. Federal and Michigan discrimination laws prohibit employers from asking certain questions during the hiring process. For example, questions regarding a personís age, marital status, religion, or other questions related to a personís protected status are prohibited, unless they directly relate to the qualifications for the job. Every person who interviews candidates and conducts reference checks should have a working knowledge of the laws that govern employment interviews.
Employers who use outside organizations to conduct background checks must comply with the federal credit-reporting law under the Fair Credit Reporting Act, which requires certain disclosure and reports to be made available to applicants.
Federal disability laws impose certain affirmative obligations on employers to ensure that disabled persons have a fair opportunity to participate in the hiring process. If any pre-employment testing is administered, then reasonable accommodations must be made to those applicants who require them. Further, the use of testing or other criteria not related to the essential functions of the position being filled should not be used as they may have a discriminatory impact on disabled applicants.
Michigan does not have a law that directly addresses pre-employment drug testing; however, if an employer is going to administer a drug test, then it should have a set policy and make sure it is applied across the board. Applicants may be required to disclose the use of prescription drugs to the test administrator, and that information should be kept confidential and only used to determine if the applicant passed or failed the drug test. Such information is not provided to the employer. Employers should also be aware that while employers can make offers of employment conditional upon an applicant satisfactorily passing a physical exam or drug test, employers may not require an applicant to undergo a medical exam before an offer of an employment is made.
All employers are required to verify that every new hire is either a U.S. citizen or authorized to work in the U.S. All employees must complete Employment Eligibility Verification (I-9) Forms and produce required documentation within three days of their hire date. Failure to follow the I-9 process can result in penalties and an audit by the U.S. Immigration and Customs Enforcement.
Employers cannot discriminate against employees based on their immigration status. Thus, once an employee has proved that he or she is eligible to work in the U.S, the employeeís immigration status should not be used in any other employment decisions.