So attending one of the employment law webinars was a no brainer. It was the second in a three-part series endeavor about employment discrimination. Topics covered were background checks, references, offers, contingent offers, adverse action, evaluations, Fair Credit Reporting Act (FCRA), employer responsibility, incorrect information, errors. Yes, it was a very full one-hour training.
But there were some areas that were not discussed and remain unanswered issues for me. No doubt they are shared by many in the industry. Maybe they're overlooked. It's just taken for granted that only gospel comes from the manager and their version of the situation shouldn't be questioned.
Time passes. Experiences build. Situations from the past finally reach a level of exposure not previously made. Influences from the not-so-straightforward creep into the picture. Your way of thinking changes. That offer that was withdrawn was a mistake; the talent is lost. The harassment complaint that wasn't made now surfaces in the form of a lawsuit or a complaint filed with the EEOC. Time to do a more thorough investigation of both versions of the situation, along with the supplement of percipient witnesses (visual and auditory). Perhaps that reprimand was not justified. Maybe that termination was the result of a manager with an agenda.
FRCA has requirements for making the candidate aware that a background check will be performed. That forms the basis of giving permission to delve into the candidate's personal life. Based on the results of the background check, the offer of employment is essentially a contingent matter - employed status is not guaranteed.
The buzzwords that keep going through my mind are "cat's paw" and defamation. We've seen in the headlines how per se defamation is so readily used by some leaders. There's also "blacklisting" for any number of reasons. So terms such as interference with economic opportunity, for a business as well as an individual, are issues that deserve some thought when evaluating the results of a background check.
We typically think of the abuser in a domestic violence situation as the male partner in a heterogeneous relationship. There are also homosexual relationships where the same dynamics are played out. The even more troubling issue, no matter which type of relationship is abusive, is that many times there is no police report or conviction. That type of record usually spells as much death to a person's career as does blacklisting. So how do you screen for an abusive manager or even a gnarly co-worker?
Perhaps the abusive manager is already ensconced in the workplace. Their behavior is toxic, to be sure, but people simply tiptoe around it and then dismiss it as "oh, that just the way Jo is." Perhaps you have a duty to the candidate to let them know about this manager's toxic personality and EQ that's hovering around 5. Wouldn't it be wonderful to absolve yourself and the company of culpability for any harm that may accrue? As with the Uber toxic work environment (until it was disclosed in the worker's blog), it just continues to be a reason why resignations and sick days pile up until someone files some type of worker's comp claim - or worse.
It's so easy to think of things in the traditional way. Every employee has full integrity of their physical abilities. They're all in good health and need few, if any, accommodations. Their outside lives are pristine. It's like living in a storybook.
And then the real world sits across from you, like a frog with a lot of warts. That's when you realize Life and the workplace are not as picturesque as they could be. There are those niggling details that need to be taken into consideration.
References:
- Reflecting on one very, very strange year at Uber
- Reflecting on one very, very strange year at Uber
- Ex-Uber Engineer Asks Supreme Court to Learn From Her Ordeal
- Employment Law for HR: Discrimination in the Workplace
- Fair Credit Reporting Act, from Wikipedia
- Credit Reports Are Regulated By The Fair Credit Reporting Act (FCRA)
- Liability-Releases-For-Background-Checks-Are-Unlawful
- 2nd Cir. Adds More Claws to Cat's Paw Discrimination Theory
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