Holiday Hiring: Keep it Legal and Don’t Forget the Background Check
October 24, 2014
Thanksgiving is just a few weeks away, and that means Black Friday, shopping online, and holiday music overload as we get ready for the big gift-giving season. It’s hard to believe, but holiday hiring season is already well under way. If you hire holiday or other temporary workers, it’s important to hire ones that you can trust.
Why Screen Temporary Employees?
Temporary workers usually have access to your place of business, and they interact with your permanent work force and maybe even clients. It’s likely that they are trained on your business systems, and may have access to certain intellectual property. They may even have access to your trade secrets. Given the huge amount of access that temporary workers are given during a relatively short amount of time, it’s important to screen these workers just as you would other employees.
As we know, background screening is an effective tool for mitigating risks, such as theft or violence in the workplace. According to the 26th Annual Retail Theft Survey released by Jack L. Hayes International, 78,085 dishonest employees were apprehended in 2013, up 6.5% from 2012. That’s not all–one in every 39.5 employees was apprehended for theft from their employer in 2013, and on a per-case average, dishonest employees steal 5.4 times the amount stolen by shoplifters ($706.21 vs $130.89). Screening is one way to protect your organization from this trend.
Legal Considerations for Screening and Hiring
Remember that the same screening laws that protect regular applicants also apply to temporary workers. That means you have to obtain a signed authorization and disclosure from the applicant before conducting a background check, and if you reject an applicant due to the results of the background check, you must provide pre-adverse and adverse notices to the job-seeker. Also, don’t forget about the EEOC guidance on the use of criminal background checks when doing your seasonal hiring. The EEOC will still expect employers to conduct an individualized assessment, even if the work is only seasonal or temporary.
Beware of ban-the box laws. Make sure you review your temp and seasonal job applications to see if there is a checkbox asking about criminal history. If your policy is to inquire about criminal history on the application or before making conditional offers, make sure that you are not in a state or city where this practice is banned.
Also remember that laws that cover harassment, discrimination, and workplace health and safety apply to seasonal workers. So do tax withholding laws. Consider issues like minimum wage, overtime pay, recordkeeping and child labor, which are all protected under the Fair Labor Standards Act.
What About Independent Contractors?
Independent contractors are a little bit different. They’re self-employed individuals, and they are often asked to perform short term project work, seasonal work, or other part-time jobs. Independent contractors often work in unsupervised positions, but may still be on-sight and interacting with your team.
Even though independent contractors are not employees, they are, in fact, hired by you. While this status reduces some of your obligations, like paying for benefits, withholding tax/Medicare/Social Security, or pay unemployment taxes, it still creates the same risks of theft, workplace violence or negligent entrustment issues that can be mitigated by a background check.
You can screen independent contractors just as you would regular full time or part time and seasonal employees. However, despite the fact that they are not actually employees, they are still “consumers” under the Fair Credit Reporting Act (FCRA). The best practice with independent contractors is to obtain and authorization and disclosure forms and follow the two step adverse action process required by the FCRA.
Here are some Do’s and Don’ts published by the National Association of Professional Background Screeners (NAPBS) for conducting effective background checks during the heavy holiday hiring period:
1. Don’t try the do-it-yourself approach to background screening – Conducting a Google search or quickly checking social media is not adequate or appropriate for vetting potential employees and could leave you open to legal issues.
2. Do hire a professional background screener – Partnering with a professional will ensure you obtain the most comprehensive and accurate data to help make informed hiring decisions.
3. Do treat all employees the same during the background screening process. Whether full-time, part-time or seasonal, they are still your employees and will most likely be interacting with your customers every day. The classification of their employment should not change the need for conducting a background screen.
4. Do make sure you’re aware of your responsibilities as an employer under the law – Background checks are subject to state and federal laws intended to protect those being screened, so obtain an understanding of what you are required to do by law to avoid penalties.
5. Don’t fail to communicate with the job applicant – Notify the applicant prior to conducting a background check and allow enough time for the individual to resolve any disputes related to information on the background check.
Oh yeah–one last thing. Don’t forget to screen Santa. Nick Fishman shares some Bad Santa horror stories here. Have a great holiday season and happy hiring!
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