5 Legal Lessons for Millennial Background Checks
June 22, 2015
By the end of 2015, Millennials are expected to outnumber Baby Boomers in the workplace for the first time ever. As the largest generational group in the job pool (depending on your source, people born 1982-2004), they’re a hot commodity. Up until now, most of the focus has been on how to woo them, lure them in and make them so happy that they want to work for you forever (or at least for a few years). But employers are finding that it’s not all smooth sailing. Hiring this growing generation of workers introduces a whole new set of legal challenges to the HR department, and the background screening process is one of those challenges.
When it comes to screening Millennials, employers need to take into account not only what’s effective, but also what’s legal. Wait a minute. I know what you’re thinking. How is a Millennial’s background check different from any other background check? Read on to learn how to spot the tricky issues and avoid a legal tangle with this new wave of workers.
1. Social Media Searches
We know that Millennials love their social networks. In fact, social media in many ways defines this generation. Many have grown up with Facebook accounts and can’t remember a world without the Internet or even without Twitter. They chronicle their lives on Instagram. But that familiarity can cut both ways. Some say Millennials share too freely and fail to appreciate the impact that social media posts can have on their careers. The oversharing can be tempting for hiring managers who are eager to tap into the wealth of online information.
Jumping into social media as a way to screen job candidate can be a risky proposition. Personal social sites are not always privacy protected, so they are often readily available through a simple search on your candidate. Here is the problem—the information you find might not be legal to use in a hiring context. Information about a candidate’s religious affiliation, national origin, sexual orientation, marital status or health condition may all be prohibited under state and federal anti-discrimination laws. Moreover, Millennials appear to reflect more cultural diversity than Gen X or Baby Boomers. For example, 42 percent identify with a race or ethnicity other than non-Hispanic white.
The inherent legal risks associated with social media searches are not unique to Millennials, but because of their diverse make up and propensity to share, employers are more likely to stumble upon protected class information that could get them into hot water. Employers need to make sure that any social media screening is done by those who are familiar with the legal risks—particularly anti-discrimination and privacy laws.
2. Digital Natives and Age Discrimination
Millennials, currently under the age of 33, are not direct targets for age discrimination. But here’s the rub–the hiring criteria you are using to attract Millennials might be at the expense of those older 40 somethings who are protected by the Age Discrimination in Employment Act (ADEA) and other similar state laws.
A Fortune article on this topic recalled a famous quote from Mark Zuckerberg: “Young people are just smarter.” In 2013, Facebook settled a lawsuit with California’s Fair Employment and Housing Department for posting an employment ad that stated “Class of 2007 or 2008 preferred.” You get the idea.
Another example is the term “digital native.” It’s the new code for a recent graduate and it’s popping up in ads where companies are looking for a person who was born and raised in the digital age. In other words, Millennials. Legal experts agree that pre-screening for digital natives is a form of thinly veiled age discrimination. Instead of screening for digital natives, identify the real job requirements needed for the position. If you want someone who is very skilled in tech and comfortable in the digital environment, those are the words you should probably use. Chances are, lots of people in their 20s and early 30s will be qualified and respond.
3. Driving Records
Apparently Millennials don’t like to drive. According to AARP, Millennials drive around 25 percent less than their counterparts did just eight years ago. If a licensed driver with a clean driving record is your target, you might actually be eliminating a significant number of prospective Millennial applicants. That might not be a big deal, but like all parts of a pre-employment background check, you want to make sure that the information you are seeking is relevant to the job at hand.
Before you run a motor vehicle report (MVR) on an applicant, you should be asking yourself why. Is a clean driving record a bona fide job requirement? Some employers want to check MVRs for reasons other than driving on the job—things like DUI type offenses, or to get a more complete picture of the candidate. Requiring a driver’s license or running a motor vehicle check would not rise to the level of discrimination, per se, but you could be limiting your job pool in the 20-30 year old market.
Millennials, more than any other generation, tend to rely less on traditional bank loans and credit cards. They are more likely to use cash, and as a group they actually spend less than Gen X or Baby Boomers. They tend to borrow less, which some experts think is related to their large amount of student loan debt. The term of art here is “underbanked.” Individuals who are underbanked have little or no credit history. If a credit report is one of your job requirements, you can expect to get little or no information about unbanked Millennials.
Credit is already a slippery slope, with many states prohibiting use of credit for pre-employment screening. But for financial institutions and positions with fiduciary responsibilities, the gap in credit information could significantly impact your ability to hire an otherwise qualified candidate. In any case, credit information is already a sensitive topic for many job candidates. It could be even touchier for Millennials.
5. Job History and Verifications
Millennials job hop. According to Data Facts blog, “a whopping 91% of them don’t expect to stay at a job for longer than 3 years”. They are mobile, more like to move to large urban areas and are less motivated by pay. Their priorities are different from those who came before them and will move on in order to find more meaningful work. Moreover, according to a recent federal study, millennials are less likely to have worked during school. That means they are more likely to be coming out of college without a work history.
All of this leaves a prospective employer with less to work with in terms of reference checking and verifications. As a result, screening for job history, applied skills and experience might be more challenging than in the past. Employers might need to get more creative when it comes to evaluating and screening for work experience. One possible solution is expanding the scope of inquiry to include volunteer experience and potentially personal references. But note that the use of personal references and investigative reports may also necessitate additional notices and further legal compliance under the Fair Credit Reporting Act.
Millennials are just at the beginning of their careers, and as the largest generation in the U.S. (representing 1/3 of the population) they will continue to have a lasting impact on the job market and the economy. Coming of age during the Great Recession has had an impact on how they approach work and career paths. As Millennials struggle to find a place in the labor market, employers should be aware of the legal challenges and different approaches to screening this generation of job applicants. These five legal lessons should provide a good starting place for making your screening program more compliant and Millennial-friendly.
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