Rules of the Road

Staying out of trouble is a good idea when growing up, but it’s equally important when you’re trying to earn that paycheck.

Obviously, interviewing for a teller’s job after robbing a bank or applying to be a school counselor when you have cocaine coursing through your veins is not the best way to land a job. Or keep one.

Felonies aside, workplace behaviors have a way of sticking with us, for better or worse. The good news for both job seekers and those hiring are the checks and balances set forth by state and federal law. The guidelines are pretty clear on what is taboo when it comes to the interview process. It can get a little murky, though, when you’re asked to comment on former employees.

Benjamin Franklin once wrote that “nothing can be said to be certain, except death and taxes.” I would add two more: jury duty and job references. If you’re an employer, you’ll at some point get a call asking what your former employees were like.

References

You may have heard about the boss who responded to a reference request by telling the prospective employer: “Yes, Tom used to work for us. What do we think of him? He has two brains; one is lost, and the other is out looking for it.”

Harsh? Yes. Illegal? No.

But let’s say Tom had filed a discrimination complaint against his former employer and believes the old boss is working hard at trying to blackball him. In Missouri, that might be considered retaliation and could be covered under the Missouri Human Rights Act.

The act went into effect in 1959 and prohibits discrimination in employment involving eight factors: a person’s race, color, religion, national origin, ancestry, sex, disability or age (40 to 69). The law is enforced by the Missouri Commission on Human Rights, an agency that falls under the purview of the state’s Department of Labor and Industrial Relations.

If you’re reading this column, you already know workplace relations can be rough sailing. You let an employee go because not only was he or she not performing, but he or she also ended up being a troublemaker. A few months down the road, you get a call. It’s another company calling about the guy you canned. What do you say? You’d like to tell them the guy was a cross between bad breath and Armageddon, but you don’t want the employee filing a defamation lawsuit. You can sugarcoat it, but then you run the risk the new employer comes after you when the employee’s true colors start to show.

Many companies, particularly large firms, play it safe and only verify the former employee’s name, title, length of employment and salary.

What if you’re the one hiring and need to check the reference of a promising applicant? By law — federal, state or otherwise — the former boss doesn’t have to give you anything. Common practice, however, falls somewhere between verifying the employee had a pulse to sharing his or her daily work routine.

Many human resources experts agree: Prospective employers should ask and former employers should answer a few fundamental questions, namely: 1. Why is the candidate qualified for the role we’re looking to fill? 2. What did he or she do well, and what did he or she need to improve upon (strengths and weaknesses related specifically to the job)? 3. Would you rehire this person?

Your goal in hiring is to make sure what the candidate just told you about himself or herself matches reality. The questions above are aimed at filling gaps the candidate, or you, may have left out in the interview. It is critical to get the most objective source possible to weigh in on the matter.

Sometimes, however, you just have to punt.

For example, one of my friends got a call from a college campus theater department, asking about one of his previous employees. My friend rattled off some initial easy answers, but then came the tough one: “Can you tell me about his character?” (At this point, my friend could have been a little snarky and replied, “You’re the theater department; isn’t that your job to tell him what character he is?) Truth was, my friend did not have an accurate bead on the employee because he held a part-time position, so he simply said he didn’t have enough information to answer the question. End of story. No harm, no foul.

I’ve compiled a quick list of do’s and don’ts that may come in handy when you’re called upon as a reference. It’s by no means exhaustive, but it can keep you on track.

Criminal Background Checks and Drug Tests

Let’s face it. We live in a society full of background checks. From the moment we go off to school, we are being sized up: The boy with a crush on his schoolmate will need to be vetted by all of her friends; your gun purchase means a waiting period; and when it’s time to tie the knot, your in-laws will run the most extensive background check of your life. Finally, if you ever decide to run for public office, get used to the media revealing the time in kindergarten when you pulled Jimmy off the merry-go-round and forced him to drink soap bubbles.

When it comes to the legality of probing an applicant’s past, we need to bring in the federal Equal Employment Opportunity Commission. It requires that companies consider the nature of any discovered offense, its relation to the job at hand and the time that has passed since the crime. Employers must also give applicants the opportunity to explain their records.

The federal Fair Credit Reporting Act sets time limits on what can be reported, with the exception of criminal convictions, which have no sunset. According to HireRight, one of the largest employment screening firms in the country, most large companies it works with choose a screening system that searches county courthouse records in jurisdictions where the applicant has lived for the past seven years to find felony and misdemeanor records. Under the FCRA rules, bankruptcies that occurred more than 10 years ago are off limits, and tax liens and civil suits/judgments cannot be reported after seven years. One caveat: These restrictions do not apply to applicants for any job with a minimum annual salary of $75,000.

If a company adopts a blanket policy of excluding all applicants with a criminal record, it could be in violation of Title VII of the Civil Rights Act of 1964, which protects applicants from discrimination. Cobbled together with state law, the essential point here is that your company needs to tread lightly and only take action on matters that substantially relate to the applicant’s ability to perform a specific job. Stray from that, and you may end up the one committing an offense.

What about drugs and alcohol?

If you run a private company, Missouri law doesn’t place many restrictions on your testing policies. You can implement a program, provided your employees are made aware they will be subject to testing. Notification can be posted in the workplace and included in the policy manual.

Off-hours, off-site alcohol use generally is OK as long as it does not affect the employee’s work performance. You cannot refuse to hire someone on the sole fact he or she lawfully drinks beer or chews tobacco away from the workplace.

However, if a worker stumbles into the office and is higher than the national debt, you may have grounds for taking action, including administering a drug test on the spot.

What about social media?

A tenuous position arises when, on one hand, your company uses Facebook and Twitter as recruitment tools and, on the other, makes employment determinations using the same bank of personal data. The cement is still very wet when it comes to Internet law in this area. The federal Stored Communications Act carries the spirit of the Fourth Amendment’s prohibition against unlawful searches and seizures, but making that apply to activities such as background checks is more difficult. Case law is still developing on this. The best advice, according to attorneys in this field, is to steer clear of that which is unknown. So, though you might end up seeing the person you just interviewed appear on Facebook sticking marshmallows in his or her ear while slurring the words to “Row, Row, Row Your Boat,” it probably is best to focus on his or her job-related qualifications, and leave it at that.

The bottom line here for employers is to make sure your management and employees periodically review HR policies on these matters. If you’re a small business and don’t employ an HR unit, you may want to have an attorney comb through your policy manual (or help develop one).

That’s the end of the story, for now. I’m being summoned for jury duty.