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Considerations to Remember When Vetting Prospective Employees

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Due to workplace safety concerns, background screening is a universal practice for employers. Companies must know that applicants possess the promised credentials, do not have a history of fraud/theft, and will not pose a threat to others. However, Massachusetts public policy often leans in favor of employees at the expense of employers.

Criminal record inquiries are an especially difficult issue for employers to navigate. Massachusetts public policy aims to increase employment opportunities for reformed offenders. To do this properly, an employer should invest in the services of a reputable and insured background check agency. An employer’s decision to attempt research on its own is fraught with peril since seemingly innocuous questions asked about a prospective employee’s past can violate their rights and incur liability. Examples include asking for a copy of a criminal record or asking about certain misdemeanors such as first convictions for drunkenness or brawling.

Furthermore, employers should be aware that the information listed in criminal background checks is not always accurate. These records can contain multitudes of errors including the crimes of others erroneously listed on an applicant’s report, misclassification of the crime committed, the listing of a single crime numerous times, and other errors and omissions. Under the Fair Credit Reporting Act, employers must obtain an applicant’s written consent, inform the applicant of a disqualification based on a report, and provide a copy of the report if a disqualification occurs. While the temptation may arise to just quietly avoid hiring the individual, this creates unnecessary liability if the applicant discovers that they were disqualified in this manner. The number of lawsuits relating to the Fair Credit Reporting Act continues to grow. There is no shortage of lawyers who would relish the opportunity to turn your business’s hiring practices into a class-action suit.

Finally, the Massachusetts Attorney General has just released guidance for employers to comply with an updated equal pay law which will come into effect in July. The gender pay gap issue is highly politicized and the Attorney General’s office has made it clear that it will vigorously enforce the new law.  The law prohibits employers from seeking the salary or wage history of any prospective employee before making an offer of employment. Employers may not require that a prospective employee’s wage or salary history meet certain criteria.  Furthermore, this law could pose a significant threat to employers since it will not require evidence that an employer intended to discriminate against women. Pay equity is a treacherous area for employers because unintentional pay differences between male and female employees can easily exist. Even progressive Senator Elizabeth Warren faced embarrassing accusations of a pay gap between her male and female staffers.

Business employers should obtain legal advice from qualified business attorneys. Compliance with background check and pay equity laws cannot be treated lightly. If your business needs assistance, an experienced business attorney at The Jacobs Law LLC can help.  Contact The Jacobs Law LLC today at ContactUs@TheJacobsLaw.com or 800-652-4783.

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