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Contingencies &
Considerations

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Offering a position to someone is fairly straightforward, right? You call them, tell them they got the job, and ask if they want it.

Not so fast.

These days, various laws and risk management best practices mean that interviewing candidates and offering jobs come with some considerations. Some of these may be a matter of personal preference, but others can come with serious legal ramifications.

Ban The Box

Ban the Box initiatives are now effective for private employers in 13 states as well as many cities and counties. Ban the Box initiatives forbid employers from asking candidates about criminal history during the interview process. This includes questions on the application and during the interview process.

The reasoning behind these laws is that these questions disproportionately affect minority populations, stifling their ability to find employment. The limitation stems from a generic thought process that any criminal record is bad—without considering the time that has passed, the nature of the crime, and the person’s actions since then.

In general, it is never recommended to ask about criminal history during the interview process, even those in jurisdictions without these laws. The best practice would be to run a criminal background check after an offer is extended, with a “background check contingency” written into the offer letter. This allows you to see whether the individual has a relevant criminal history while offering all candidates the opportunity to shine. We’ll talk more about criminal background checks later.

Drug Tests

Some hospitals make employment offers contingent on a drug test. This means that the candidate must complete a drug screening at the hospital’s expense before starting the position. Such tests ensure that the candidate does not have illegal substances in their system when starting employment.

Drug tests make sense for candidates who will have access to controlled substances. However, drug testing is legally fraught. In many cases, a candidate’s drug test will alert for a prescription medication substance and is not necessarily indicative of an addiction. Per the Americans with Disabilities Act, an employer cannot ask what medical condition an employee has that requires such a medication. In these cases, the employer also risks the employee claiming discrimination if the job offer is rescinded or if they are involuntarily terminated at any point.

In addition, if a hospital drug tests any employees, all incoming employees must be tested. This can protect the hospital from a discrimination lawsuit (that would be very difficult to win) if one individual feels they were singled out due to a protected status. You may choose only to test those who will be in direct contact with controlled substances, but keep in mind that anyone who hands controlled substance prescriptions to clients (such as receptionists and assistants) will also need to be tested.

Further, hospitals that leave controlled substances for anesthesia on the counter or unlocked for any duration of time would need to test all incoming team members as well since the drugs would be available to anyone.

Drug testing can also be problematic in states where marijuana is legalized. While marijuana is still illegal on a federal level, some states have taken another step and made discrimination based on a positive marijuana test illegal. In those states, choosing not to hire someone based on a positive marijuana test could open your practice to litigation. We strongly recommend discussing any action you plan to take over a positive marijuana test with an attorney licensed in your state.

In general, drug tests are not a bad idea, especially if controlled substance policies are relaxed in your practice. The key is ensuring that the policy is applied to all candidates, not selectively. It is also essential to ensure that employment decisions are not based solely on the drug test result.

Any positive result must be discussed with the team member by telling them about the result and asking why it came back positive. If they state they are on a drug for medical purposes, we must take their word for it and not ask any additional questions. We also cannot make an adverse decision after a medical condition is disclosed.

Social Media

One of the most tempting things to do when considering a candidate is to check out their social media page. Please note that this is one of the worst things you can do when recruiting people! Here’s why:

  • Bias: Looking at the personal information posted on social media opens you up to bias, whether conscious or unconscious. For instance, a candidate’s social media may reveal that the individual is extremely religious. If you practice a different religion or don’t believe in religion, your opinion about the team member will alter. You might find that the person “identifies” as a mermaid (this actually does happen!) and spends their off time lounging around in a fishtail. This will absolutely alter your opinion about the individual. Conversely, you may see that their off-work activities are similar to yours. This can cause you to be unconsciously blind to other disqualifying factors. Bias is a strange yet highly human manifestation that has no place in the recruiting process. Looking at social media amplifies it and causes us to make poor hiring decisions.
  • Discrimination: If you look at someone’s social media and see something that identifies a protected status, any adverse action could be seen as discrimination due to that status. Keep in mind that these days, nearly every person you interview is in a protected class. The less you know about those classes, the less likely you will be accused of discriminatory practices.

In general, we never recommend looking at a candidate’s social media. We also don’t recommend friending any team members, either. The less you know about their personal life (that they don’t share with you openly), the more protected you are.

Professional Background Checks (AKA Reference Checks)

Professional background, or reference checks, are ubiquitous in all fields. Reference checks can provide insight into the work habits of a candidate, but they can also be rife with discrimination and bias from the person giving the reference.

In addition, asking certain questions can open your hospital to discrimination suits, especially when the information is used against the candidate. Reference checks can also be unreliable, as candidates may only send you contact information for those who they know will supply an excellent reference. Here are some best practices for checking references:

  • Keep it professional: Make sure you only ask questions directly related to the candidate’s work in the previous company. Avoid asking questions about their participation in off-hours work events and other non-work-related subjects.
  • Keep it legal: When checking references, you cannot ask questions that identify a protected class. For instance, you cannot ask questions that attempt to determine the candidate’s age, religion, political affiliations, and other protected information.
  • Keep it non-medical: Don’t ask questions about the candidate’s medical history. You may ask, “Was the candidate dependable?” but you cannot ask, “Did the candidate call in sick often?”.
  • Look out for bias and discrimination: Bias and discrimination are rife when conducting reference checks. Prior employers often have no filter and will criticize ex-employees for perceived transgressions based on unconscious or conscious bias against the person. A balanced reference will be able to provide good aspects about even the worst candidate.
  • Don’t worry about the “no’s:” There are many employers who refuse to provide references, no matter how outstanding the team member was. Don’t base your hiring decision on whether a candidate’s ex-employer provides a reference. More often than not, it has more to do with company policy than the actual candidate.

Criminal Background Checks

Criminal background checks are some of the most controversial aspects of the hiring process. In the past, even iVET360’s HR and Training Managers highly recommended them. However, current trends show that criminal background checks are not helpful in the hiring process in most cases.

It is highly unusual for a criminal background check to show a conviction that relates to the position being offered to a candidate. In fact, less than 0.25% of the hundreds of background checks that iVET360 has run for our clients in the last three years have shown any criminal history. The most common convictions were drug offenses, usually from many years prior.

There are many reasons for this. A critical one is simply the low number of convictions that occur in the United States. For example, the Rape, Abuse & Incest National Network (RAINN) has studies that show that for every 1000 sexual assaults, only 310 are reported to the police, and 28 lead to a felony conviction. Similarly, out of every 1000 robberies, 619 are reported to police, and only 22 lead to felony convictions. That means that if one person commits each crime, only .28% of rapists are convicted, and 0.22% of robbers are convicted. These statistics are important to know because the fact is that the chances are small you will be interviewing someone with a violent criminal record is very, very slim.

This brings us to drug crimes. Once again, the likelihood that someone applying for a role in your practice has been convicted of a drug crime is very low. In addition, while drug usage rates are similar among races, people of minority populations are disproportionately targeted for these crimes. In fact, Drugpolicy.org notes that “Higher arrest and incarceration rates for these communities are not reflective of increased prevalence of drug use, but rather of law enforcement’s focus on urban areas, lower-income communities, and communities of color.” This data means that it is less likely that a white drug user will have convictions on their record than other populations.

The other challenging aspect of criminal background checks is adverse actions taken because of them. In the dramatic majority of cases, it would be difficult to make a case for choosing not to hire someone because of something found in a criminal background check. That being said, in the extremely rare case that a criminal background check shows a relevant crime, that information can be helpful in preventing a problem. Because this is such a difficult choice for hospitals, here are some best practices to consider if a background check shows a conviction:

  • Felony or misdemeanor: Make sure that you only take adverse actions on severe crimes. Most misdemeanors will not be severe enough to warrant rescinding a job offer.
  • The nature of the crime: Seriously consider whether the crime has any effect on your business. For instance, someone convicted of rape would likely not be the best candidate to work in a practice full of women, especially if they would ever be alone with only a few at a time. Conversely, someone who was convicted of marijuana possession is much less of a threat.
  • Understanding the “why:” While it can be challenging, it is crucial that you ask the candidate about the conviction. Since the person will know that there is a conviction on their record, if you run a background check then suddenly rescind the offer, they may be able to make a discrimination case against your practice depending on the conviction and their other protected classes. Asking why can also help you understand how likely the person is to affect your practice negatively. For instance, if someone was convicted of petty theft, and they say it was because they had recently lost their job and their baby needed to eat, it is highly unlikely that this will cause a problem for the hospital since they would be receiving pay for their work. It is critical that you discuss any convictions with the candidate before making an adverse decision based on them.
  • The timing of the conviction: If someone was convicted for a non-violent offense seven years ago, it is less likely that they will re-offend than if they were convicted six months ago. People change dramatically over the years, and many deserve a second chance, especially after the passage of time.

Remember that in most cases, you cannot make an adverse decision about a candidate based on the result of a criminal background check. If you choose to conduct criminal background checks, you must conduct them for all candidates that are offered a position.

Also, keep in mind that criminal background checks cannot be performed without the candidate’s permission. This includes asking friends in the criminal justice system for a “quick check!” We do not recommend discussing criminal history in the application or interview process, especially in jurisdictions where it is banned. If you make an adverse decision about a candidate based on a criminal background check, you must alert the individual of that fact. Your background check provider can give you a document to provide to the candidate.

As you can see, whether it involves social media, background checks, criminal history, or drug screens, contingencies have many gray areas to consider. It’s important your practice have specific and clear policies about them before you start the recruitment and hiring process!