Hiring Practices In A Heightened State Of Alert. (Staffing Solutions).

Since the terror attacks on September 11, the nation has questioned virtually every facet of life, from travel safety to the definition of a hero. Employers have not been immune, asking themselves what they can do to avoid terrorism from occurring in their workplace. Fortunately, the same principles of law that guided employment decisions before September 11 remain the foundation by which employers should be guided today. The difficulty, of course, lies in applying these principles in a heightened state of alert.

Hiring practices can be particularly daunting, with the seemingly competing interests of protecting the workplace from terrorism, anthrax or some yet to be imagined terror while remaining within the boundaries of the law. Faced with the possibility of harm and the potential liability for such harm, employers can take steps to avoid hiring individuals prone to violence. At the same time, employers can take additional steps to ensure that these concentrated measures are consistent with the demands of federal and state anti-discrimination laws.

Ensuring EEO compliance

In the days following the attacks on the World Trade Center and the Pentagon, President Bush cautioned the nation not to "hold one who is Muslim responsible for an act of terror." In addition, Can Dominguez, the Chairperson of the EEOC, issued a press release reminding employers of their obligations to prevent discrimination based on religion or national origin, encouraging employers to promote tolerance and diversity in the workplace, and reinforcing the EEOC's commitment to pursue employers that permit or condone religious and/or national origin discrimination.

This timely advice from President Bush and Ms. Dominguez represents nothing new for employers. For nearly forty years, employers have been prohibited from discriminating against job applicants on the basis of religion or national. origin. Under both federal and state law, religious discrimination is a denial of equal employment opportunity-based on a person's religious beliefs or practices. National origin discrimination is more broadly defined to include discrimination on the basis of an individual's birthplace, ancestry, culture, or language, as well as discrimination against individuals having the characteristics of, or an association with, a particular national origin group.

As was the case before September 11, employers must take steps to ensure that all employment decisions are based on legitimate business considerations and not on impermissible characteristics, such as an employee's religion or national origin. To this end, employers are urged to redistribute and affirm company policies against discrimination and to counsel and train employees, particularly those involved in the hiring process, on tolerance for different religious practices and different ancestries. Employers and employees alike must understand that a fear of working with someone who looks different, perhaps like "one of them," or someone who practices a different religion still is not a defense to discrimination.

Making the most of the application process

In this environment of heightened consciousness, the application process can be an essential tool in and of itself. At this stage, employers have the first and best opportunity to keep individuals prone to violence out of the workplace.

First, employers should obtain as much relevant information about all applicants as is legally permissible. Scrutinize each application for gaps in employment, job-hopping and an abandonment of a prior career path and then conduct a meaningful interview in which tough questions about the gaps in employment, the reasons for leaving a job, or the inability to find a job are explored in detail. In addition, verify and trace the social security number provided by the applicant to insure that it actually belongs to the applicant. Finally, verify prior employment and education in addition to conducting reference and background checks. A release signed by the applicant will facilitate obtaining information from former employers.

In making reference and background inquires, however, employers must be aware of the disclosure and consent obligations imposed by the Fair Credit Reporting Act (FCRA) and its state counterparts, including the California Consumer Credit Reporting Agencies Act (CCRAA). These statutes impose restrictions on an employer's ability to obtain and use certain information in screening applicants, such as employment histories, criminal background information and personal information like current address and telephone numbers, as well as information obtained through personal interviews with the applicant's neighbors, friends or other associates, when that information comes from an organization whose business is to gather such data. Organizations in the business of gathering such data would include police departments, private investigators or reference checking services. Employers who seek such information for an employment purpose, such as deciding whether to offer employment, must:

* Disclose in writing their intent to obtain the report. Because this disclosure must be "clear and conspicuous," it can not be included on the application form.

* Obtain written authorization to obtain the report before requesting it. This authorization can be drafted to allow investigations in the future. To comply with California law, this authorization must include a box an applicant can check to obtain a copy of the report at the same time as the employer.

* Before making an employment decision based on information contained in the report, provide the applicant with an unedited copy of the report along with a summary of FCRA rights and wait a reasonable amount of time, at least five business days, before taking the action.

* When the action is taken, tell the applicant that the information was one reason for the action. Also give the applicant the name and address of the organization supplying the information, advise that that organization did not make the decision and can not explain it, and tell the applicant of his or her right to dispute the report.

These statutes contain additional requirements too detailed to mention in this space. It is essential to recognize that the obligations arise not only in connection with the application but also with the denial of employment based on information contained in these reports. Counsel should be consulted to ensure that the materials used at each stage in the hiring process comply with these laws, as the penalties for violations can be significant.

However, employers seeking to obtain background reports for the sole purpose of preventing terrorism should keep in mind that although these reports can be a valuable tool in avoiding individuals prone to traditional workplace violence, they are unlikely to be as helpful in predicting who may be a terrorist. Criminal background checks conducted on the nineteen September 11th hijackers produced only a minor conviction for one of the hijackers. Experts indicate that it will be very difficult to ferret out the "sleepers" who are here for the express purpose of lying in wait until an order is given to commit an act of terrorism. Thus, although conducting background checks may provide employers with peace of mind, as well as a defense if violence occurs, employers should not be lulled into a false sense of security.

Although these recommendations are not the only possible measures employers can take in addressing hiring issues in the aftermath of September 11, these steps should provide a useful and lawful level of scrutiny to assist in resolving fear, suspicion or uncertainty about an applicant.

Jane Howard-Martin is a partner in the Labor and Employment Practice of Morgan, Lewis & Bockius LLP, resident in the Los Angeles office.