Most SNF employers are aware of the necessity of screening job applicants—but many may not know what can and cannot be asked in the employee screening and interview process. Cognitive and personality tests, medical examinations, and credit and criminal background checks can all be highly effective in helping to select suitable candidates—but only if used correctly.
One of the easiest ways to avoid trouble is by using the job application itself as an initial screening process. This is because, as a general rule, information such as proof of age, conviction record, citizenship, and address should be a part of the employment application.
It is much easier to reject applicants using this paper-based review process than after a personal meeting.
Look for the following:
- Gaps in employment or education
- Frequent job changes
- Application questions not answered
- Conflicting information
- Personal but no professional references
- Dates that do not seem correct
- The overall appearance and content of the document
If satisfied with all the paperwork, a face-to-face meeting can be organized, but it should always be remembered that screening procedures must take into account the following legislation:
– The Equal Pay Act of 1963 states that no employer can pay wages to employees at a rate less than the rate at which wages are paid to employees of the opposite sex for work which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.
– The Civil Rights Act of 1964, Title VII, permits employment tests as long as they are not “designed, intended or used to discriminate because of race, color, religion, sex or national origin.” Title VII also prohibits both “disparate treatment” and “disparate impact” discrimination.
“Disparate treatment” includes such things as the obvious—if people of a different race, color, religion, sex, or national origin are treated differently—but also less definable aspects such as “evidence of bias” which includes “discriminatory statements.” The subjectivity involved in these definitions can—and has—led to legal problems. “Disparate impact” is also potentially problematic: for example, an employer who requires that all applicants pass a physical ability test might thereby inadvertently discriminate against women.
– The Age Discrimination in Employment Act (ADEA) of 1967 prohibits discrimination based on age (40 and over) with respect to any term, condition, or privilege of employment.
– The Pregnancy Discrimination Act (PDA) of 1978 prohibits “sex discrimination on the basis of pregnancy, childbirth, or related medical conditions.” This effectively makes it illegal to screen and exclude applicants based on all aspects of their pregnancy.
– The Americans with Disabilities Act (ADA) of 1990 prohibits employers from discriminating against qualified individuals with disabilities on the basis of their disabilities. This act says that employers may not ask questions about disability or require medical examinations until after a conditional job offer has been made to the applicant
– The Health Insurance Portability and Accountability Act (HIPAA) of 1996 determines that an employer may not request health status information about an applicant from a provider without prior authorization from that applicant.
– The Genetic Information Nondiscrimination Act of 2008 (GINA) protects individuals from “genetic discrimination” in employment. The GINA makes it illegal to take decisions about hiring, firing, promotion, pay, privileges or terms, or to limit, segregate, classify, or otherwise mistreat an employee, based purely on the results of any sort of genetic testing. It is also against the law for an employer to request, require, or purchase the genetic information of a potential or current employee, or of their family members. In summary then, all screening and selection procedures should be properly validated for the positions and purposes for which they are used. This means they must be job-related and their results appropriate for the employer’s purpose.
The only exception granted for many, but not all, of these rules is if the screening process can be shown to be job-related and consistent with business necessity—in other words that it is necessary to the safe and efficient performance of the job.
Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes, or who have no understanding of the potential legal ramifications for the company, appropriateness for a specific job, or whether it can be appropriately administered and scored
