where a candidate’s creditworthiness is substantially related to the job.
Dentists must keep in mind that they do not possess an unfettered right to investigate all aspects of an applicant’s criminal background. For instance, the Equal Employment Opportunity Commission (EEOC) prohibits an employer from automatically disqualifying an applicant because of a prior conviction. Rather, in determining whether to reject an applicant based on a conviction, the EEOC recommends that the employer take into account:
• the nature and gravity of the offense
• the time that has passed since the conviction or the completion of the sentence
• the nature of the job for which the applicant has applied
Additionally, some states limit employers from inquiring into arrests at all or convictions that occurred well into the past. Other states only allow employers to consider convictions if the crimes are relevant to the position at issue. Accordingly, because state law varies widely regarding whether an employer can investigate the possible arrests and convictions of a prospective employee, a dentist should consult with an attorney or the dentist’s state Department of Labor before inquiring into an applicant’s criminal background.
A dentist who hires a third party to perform background checks on prospective employees should also be mindful of the Fair Credit Reporting Act (FCRA). The FCRA imposes various requirements on employers who rely on “consumer reporting agencies” to conduct background investigations in connection with prospective employees. The term “consumer reporting agency” is defined quite broadly, such that any dentist who hires a third party (e.g., private detective, employment screening company, online data broker, etc.) to investigate an applicant’s background will be subject to the terms of the statute. First, the dentist must provide the prospective employee with a notice that the dentist is seeking a background report concerning the individual. This notice must be in writing, clear and conspicuous, and in a document that solely consists of the disclosure.
Second, the dentist must obtain the written authorization of the individual prior to seeking the background check. This authorization may be included in the employment application itself. The dentist must certify to the reporting agency the permissible purpose for the report, and certify that the report will not be used for any other purpose. If the applicant refuses to consent to a reasonable request for information, some jurisdictions may allow the dentist legally to decide not to hire the person on that ground.
The dentist must obtain the written authorization of the individual prior to seeking the background check. This authorization may be included in the employment application itself.
The FCRA requires the employer to notify the applicant of any adverse action (such as a denial of employment) that is based at least in part on the agency’s report. The notification must contain certain required provisions, such as:
• The name, address, and telephone number of the agency (including a toll-free telephone number, if it is a nationwide agency) that provided the report
• A statement that the agency did not make the adverse decision and is not able to explain why the decision was made
• A statement setting forth the consumer’s right to obtain a free disclosure of the consumer’s file from the agency if the consumer makes a request within 60 days
• A statement setting forth the consumer’s right to dispute directly with the agency the accuracy or completeness of any information provided by the CRA
States may impose requirements in addition to the FCRA.
Thus, dentists should give serious thought to performing background checks on their prospective employees. While the scope and detail of the background check may vary depending on the position to be filled, background checks may help dentists minimize or avoid liability for claims of negligent hiring. Background checks may similarly curb instances of theft and workplace violence. However, because federal and state law governs the procedures and scope of background checks, a dentist should consult with an experienced employment law attorney before undertaking this process.
FIGURE 1.16 SAMPLE REFERENCE CHECK WORKSHEET
FIGURE 1.17 SAMPLE INFORMATION RELEASE WAIVER AND INDEMNITY
Verifying Credentials
Verifying credentials is an important task in the hiring process. The laws of your state will determine which dental office employees must be licensed. Dentists can be subject to disciplinary action — or possible loss of their own licenses — for failing to check the validity of their employees’ licenses.
Should You Google Job Candidates?
A recent survey conducted by CareerBuilder found that 48 percent of employers will use Google or other search engines to research candidates.13 Using Google or other social media platforms to research job candidates is a slippery slope. On one hand, you may discover information that indicates the candidate is a perfect fit for your practice culture — or, conversely, that the candidate would be happier in a work environment very different from your own. On the other hand, you may also find information that you are prohibited from taking into account during the hiring process. Examples include marital status, religious affiliation, or age. If the candidate is not hired and can prove you knew about these things in advance of the interview, you may be open to potential discrimination suits.
If you choose to use search engines or social media tools in the hiring process, be sure to protect yourself. The following guidelines for conducting a legal search have been adapted from the American Bar Association’s monthly webzine, Law Practice Today14:
1. Don’t do online searches yourself. Do hire a third-party vendor to conduct the social media search. You can limit what you learn about the candidate by providing the vendor with a specific list of details you wish to verify. A vendor who specializes in these searches has the tools to conduct in-depth research, and may be able to go back further in history than you can.
2. Do have a written policy in place. Don’t stray. A policy informing candidates that you may conduct an Internet search as part of the interview process is a good idea. Identify which sites will be searched, as well as what criteria will be considered in the job search. It is also wise to disclose that a third party, not the person with the final hiring decision, will be conducting the search. Figure 1.17: Sample Information Release Waiver and Indemnity contains language that should cover these points.
3. Do inform applicants you will be conducting a social media search. Don’t ask for passwords. Some sites consider it a violation of their terms of service for someone other than the account owner to log in using the owner’s credentials. In fact, certain states consider this practice illegal. At the very least, asking for a candidate’s passwords connotes a violation of trust even before the candidate is hired.
4. Do document. Don’t rely on your practice’s social media policy. Use the templates in this chapter to document each step of your job search. Also keep in mind that
