US Dopers: Applying for jobs

In My Humble Opinion
1

I have an interesting assignment: an American employer is expanding into the Canadian market, setting up offices here, and has asked me to produce a report on their employment application practices and whether or not they are illegal in Canada.

I’ve gone through their proposed application process, and I must say, I’m very surprised at what they want to do. They want to ask questions of applicants that are, quite frankly, illegal to ask in Canada; and to have their applicants undergo background checks that have nothing to do with the job. A few examples:

– They want to know an applicant’s gender and ethnicity. They claim that it is for affirmative action reporting purposes, but asking such questions is illegal in Canada under human rights legislation–the Canadian idea is to have as gender- and ethnicity-neutral applications as possible, thus avoiding accusations of discrimination if the applicant doesn’t get the job.

– They want to know an applicant’s age. This is prohibited by human rights legislation. Same reason as above.

– They want to do pre-employment and random-during-employment drug and alcohol testing. Again, this is illegal here, unless it can reasonably be connected to a bona fide occupational requirement that involves the safety of co-workers or the public–for example, it is OK to test a truck driver for drugs and alcohol, but not anybody who spends their days at a desk. Any drug or alcohol dependency is classified as a “disability,” and the disabled are protected by human rights legislation. Generally speaking, tests to detect whether a deskbound worker has simply ingested drugs and alcohol recreationally in their off hours are not allowed under human rights legislation.

– Background checks on such things as credit reports, driver’s abstracts, and criminal records. In the case of the latter two, records can be checked if (again) they affect job requirements (for example, you don’t want to hire a convicted fraudster to look after your books); but otherwise, they cannot be. And why would you ask about an applicant’s personal credit report? Needless to say, you cannot ask about that here.

In essence, unless you can show a reasonable cause why you, as an employer, need this information and can demonstrate how it fits with the job requirements, you’re not allowed to ask about it. I think my client will be very disappointed with what I tell them about their process, but I’m curious as to how widespread this type of application process is in the US. Americans, do you have to provide all this information in order to be considered for an office-type job? Even if it has nothing to do with the requirements of the job or your qualifications for it?

2

Credit checks and criminal records are pretty par for the course at the office jobs I’ve had. Pre-employment drug screening is common in some industries and unheard of in others; I’ve never been subject to it (and would seriously reconsider accepting a job offer if I were.) I don’t think it’s as common in office setting as people make it out to be. It’s definitely common in any manufacturing or machine-operating setting, for obvious reasons.

Never been asked about my gender and ethnicity (although the former is pretty obvious from my name).

3

A person’s credit status is (in the eyes of many of who advise companies re hiring) a fairly good indicator of whether the person is under financial stress, which would make them more likely to steal or embezzle. If I had a person handling large sums of money their credit history would be info I would like to have.

4

I might be mistaken, but I’m pretty sure that things like gender and ethnicity are not actually used/seen by the HR department, at least not during the hiring process. It’s just information that they collect so they can report it to the affirmative action bureau (or whatever it’s called.) Basically, it’s used to prove that they aren’t hiring based on race, gender, etc…

So let’s say your company has fifty white employees, and only one black and one Hispanic, and everyone is male. Well, by using the information collected during th hiring process, you can prove that almost all of your applicants were white males, so it’s not your fault.

Also, answering those questions is optional. In every job application I have ever filled out, you can always chose not to identify your gender or race, and it clearly states that the information won’t be used in the hiring process.

5

You are not mistaken, at least not in theory. And the “affirmative action bureau” is the EEOC (Equal Opportunity Employment Commission).

I’m not sure whether it’s mandated on the state or federal level — I think the latter — but the affirmative action questionnaire is required to be separated before the rest of the application is sent for processing and evaluation. And it is illegal to include such questions in the body of the application. (I once refused to put my driver’s license number on an application form, since in the SoW the license number has the individual’s birth year encoded. I didn’t get that job, but I never found out whether my refusal to answer the question had anything to do with it.) I can’t swear on a stack of Federal regs that such information never gets used in the selection process, but the fines for violation can be pretty steep.

Source of my information: five years spent supporting my employer’s EEOC application, during which time I learned more about the relevant regulations than I ever wanted to know.

6

Some of those things probably aren’t legal in the U.S. either. At least in this jurisdiction I know it is illegal to ask an applicant their age.

7

True, but there are so many ways around that - “We need a copy of your driver’s license.” or “What year did you graduate from high school/college?” Granted, if you can prove you were not hired because of your age, you have a good lawsuit - but try proving that.

Back to the OP: Yes, many of those things are illegal to ask in some states.
However, to be fair to the employer, a lot is simply covering their asses so there WON’T be grounds for a lawsuit. That is why it is good to know so they can say that they have fair hiring practice by showing minorities, various ages, genders, sexual orientation etc. within their company. Often this is “voluntary” information on an application.

Regarding credit checks - this is becoming more and more common, although -as you mention - it is usually reserved for employees who might have to deal with bank deposits or other money transactions.

8

In the US, most demographic information isn’t illegal to ask, but does create a legal exposure if it is used to discriminate. For this reason, most companies won’t ask or will route this information separately from the information used to evaluate qualifications. An exception is disability. The Americans with Disabilities Act does specifically prohibit some questions about disability.

For the Affirmative Action information, any competent employer will route that separately from the information used to evaluate qualifications. It will typically go to someone in HR, but should never go to the hiring manager. If a company does sufficient business with the US federal government (as a contractor, subcontractor, or a few other situations) it is considered an Affirmative Action employer and is required to collect race, sex, disability, and veterans status information for some required reporting. This requirement only applies to their US employees, so should have no bearing on hires in Canada.

Nitpick: Affirmative Action is actually handled through the Office of Federal Contract Compliance Programs (OFCCP), part of the Department of Labor. The EEOC handles discrimination complaints.

Chemical dependency is also considered a disability in the US, also, but current substance use is treated differently from past dependency. The addiction or dependency is covered by the ADA, but current use is not, resulting in our ability to drug test under various circumstances, the specifics of which are defined at the state level. In some states, Worker’s Comp. costs will be lower for having a drug testing program.

The US Department of Labor’s Compliance Assistance is a great website for this stuff: http://www.dol.gov/compliance/

I don’t necessarily think your client will be disappointed that they can’t ask this stuff in Canada. It sounds like they’ve taken a fair amount of care to adapt their hiring process to US laws, and will want to do the same in Canada. You just have different laws. If they are disappointed, I expect it will be over the drug testing and background checks. The demographic stuff they are only collecting because someone else makes them do it (government, insurance companies, etc.).

9

Just to reiterate - in the US, information on Gender, Ethnicity, and Age (it’s not actual age, just identification of over/under 40) is collected, however it is specifically not presented to the hiring manager. This information is compiled as statistics (disassociated from the individuals) to support reporting to the Federal Gov’t that discrimination is not occurring.

WARNING! POLITICAL OPINIONS! - Regarding drug testing, credit checks, background checks, etc., we in the US now live in a security state. It’s the new state religion. We are not to question it, lest we become a suspect. So, this has seeped into all aspects of society.

Granted, hiring managers want to know they are getting the best available, and they want to weed out the mis-creants, but IMHO I am concerned that people are frequently holding others to a standard that they would have trouble meeting themselves and run the risk of over emphasizing perceived negatives that they would not be aware of if they didn’t demand 3D colonoscopies of every applicant.

10

I think this may be the nub of it. I’m preparing a formal report for them, but we’ve spoken on the phone a few times. They find it very difficult to believe that we are so different that they cannot run background checks, that they cannot do random drug testing, and that they cannot collect demographic information. (In the case of the latter, our own federal and provincial governments don’t collect the information, so there is no point in an employer collecting it.) The fact that they must restrict themselves to solely looking at the requirements of the job and the applicant’s ability to meet those requirements puzzles them.

Ah, but here’s where the laws really differ: by simply asking for such information, the employer opens itself up to accusations that hiring decisions were made based on the replies given. Anybody who didn’t get the job after answering such questions could file a complaint with the Human Rights authorities stating that they were discriminated against because they answered they were _____ on their application. Such a complaint is not a lawsuit, but it can be just as much of a nuisance and just as costly in the end. (Something for an employer to think about in today’s economy?) The theory here seems to be that if the application process is as narrow and neutral as it can be, then diversity will result without having to force it in various ways. Not an argument, just an observation–and perhaps some “thinking out loud” as to how I’ll communicate this to my client.

As for the voluntary aspect of collecting certain information, I wonder. As part of my research, I arranged with my contact at the client’s to go through the application process like any other applicant. He was in on it, as was one other contact, but nobody else knew I was anything other than an applicant who was replying to a job ad. Anyway, I voluntarily left the age, gender, and ethnicity questions blank. Some time later, I receive an e-mail from somebody (but not my contacts) at the client’s office–would I please let them know my age, gender, and ethnicity. I’m sure this information truly is voluntary in many cases–but I sure started to wonder just how “voluntary” it really was.

Some interesting observations, folks. Sorry it’s taken me a while to get back to this thread, but your comments are educational and much appreciated.

11

A key difference is, the US perspective does consider a clean criminal background and good credit as relevant to the job. I would say that Canadian law just considers the individual privacy considerations as more important than the relevance to the job.

I also wouldn’t assume the second contact about the demographic information means it wasn’t voluntary for you to provide it. They need to demonstrate that they are making a true effort to collect the information. If do know that if it isn’t provided, at some point Affirmative Action employers may be asked to provide it “by observation.” For Federal contractors, the US government is serious about wanting this information tracked.

The weak point of the argument that not collecting demographics keeps the application process race/gender neutral is that during the interview these do become completely obvious if someone wants to discriminate. That’s not to say the Canadian way is necessarily worse, especially for Canada, but both systems have their plusses and minuses, I would say.

There is no US EO/AA reason to collect age in the hiring process, though. The reasons one might want to collect age are to assist in background checks and to facilitate getting new employees benefits started. Keep in mind that once the hiring decision has been made, the manager is on HR’s back to get the employee started effective yesterday, because work is behind, and as soon as the employee starts, he wants all his benefits to be in effect immediately. So if there were no privacy/discrimination considerations, or if those considerations could be sufficiently addressed by routing the information outside the selection process (as is easily done with an online system) there are some non-malevolent reasons to ask for date of birth. All of this will be less relevant in Canada, since you won’t be doing background checks and we all know the benefits issues are different.

12

We also live in a lawsuit state. No one wants to be on the witness stand, after their employee defrauds their shareholders or competitors, and be asked, “Do you mean you hire {accountants, actuaries, lawyers, engineers} without even a cursory background check to weed out drug addicts or felons?”

13

I’m surprised that checking credit for employees is illegal in Canada. How do you vet people who handle financial transactions on behalf of the corporation?

14

If there is a reasonable connection to the job, then certain checks can be done. For example, you will want to see a driver’s abstract for an applicant for a truck driver’s job, and you will want to do a criminal records check for employees in positions of trust (I had one of these performed on me when I worked in a casino and handled tens of thousands of dollars in cash daily). But there are some caveats:

– Such a check can only be performed after an offer (even an offer contingent on passing background checks) has been extended. Not before.

– The check must have a reasonable connection to the job, as illustrated above.

As far as I can tell, the local feeling is that a person’s personal credit history is too far removed from their professional life to be valuable as a determinant–there is no reasonable connection to the requirements of the job, in other words. (You may disagree, but that’s the way things are seen here.) True, as explained upthread, personal financial troubles may create a moral hazard; but that’s where a Canadian employer would likely look to experience. Has this person handled corporate finances before? For how long? Did there seem to be any trouble then? Can we call that company and find out for sure? What about references? These are the kind of things that a Canadian employer would look at; and of course, if the job really does involve a position of trust, criminal records can be checked for fraud convictions and the like.

Harriet, a good post, but I’ll have to leave commenting on it for a while–must tend to a few other work things first.

15

For some of these occupations, though, doesn’t the licensing body look after that sort of thing? For example, I know that in order for lawyers to be licensed in my jurisdiction, they must demonstrate to the local Law Society (similar to a state bar association) that they have clean criminal records and supply whatever else the Law Society demands that illustrates their “good moral character.” (The Law Society’s own words.)

Anyway, the point is, that if you hire a lawyer who is licensed to practice in my jurisdiction, you don’t have to perform such a check–the Law Society has taken care of that for you before granting the lawyer his or her license. This is not to say lawyers can’t be embezzling fraudsters–they can, even here–but it seems to me that background checks are steps that an employer shouldn’t have to take when a licensing body has already taken care of it.

You may have a point though with unlicensed occupations though, Freddy.

16

Good point about the privacy. It’s taken quite seriously here.

Your post made me wonder about something that is somewhat tangential to your point: I wonder how the Canadian arm of this company will be set up.

Many Canadian subsidiaries of US companies are set up as Canadian companies–that is, they are incorporated as private Canadian corporations; with 100% of their shares owned by the US parent. This creates a corporate veil between the owner and the corporation. As a result, the Canadian corporation (because that’s what it is) generally looks after itself in accordance with local laws–hiring, firing, benefits, etc.; and makes its own local decisions in accordance with local law. Thus, there is no reason for this Canadian corporation to report any demographic information to the US or state governments. Of course, this approach all depends on how the Canadian subsidiary is set up, but it may be worth it for me to explore. And to explain to my client.

I’d agree, and I’ve realized that there is very little that can be done about what is apparent about the applicant’s race and gender (and rough age) at an interview. I’d add, however, that the most neutral point of our process occurs before the interview; while my client was asking for race and gender four or five questions into the application form, before an interview would be considered. Under such circumstances, I’d be worried that my race/gender information played a role in getting (or not getting) the interview, in spite of any assurances to the contrary.

Completely understandable, and pretty much the same here. Once an offer is extended, age is needed for pension and benefits reasons, for example; and other information, such as Social Insurance number (SIN), is needed for tax purposes.

But the laws here are set up in such a way that if your pre-offer background checks require documentation that indirectly disclose age, they cannot be requested. For example, the employer cannot even request a driver’s license number. Why not? Because it links back to the applicant’s driver’s license in the DMV database, which contains the applicant’s date of birth, from which the applicant’s age can be discerned. Same thing applies to criminal checks: a date of birth and a name is required to do those. Somewhat similarly, a SIN cannot be requested–its background information reveals much about a person that is covered by a protected ground of the Human Rights Code. This prohibition on indirect disclosure really limits what an employer can do–leaving pretty much what the goal of all the restrictions is: to focus the employer on the requirements of the job and the applicant’s ability to fill it.

17

As far as the drug screening requirement:
I now assume that a drug test will be required, as part of a job offer. These are white collar, middle class, sit at a desk, don’t apply if you don’t have a college degree kind of jobs. No driving or machinary involved.

At my last job, I asked about it. The reason I was told is that some of the company’s jobs involve running fork lifts and other equipment, in the warehouse. It was considered better to test EVERY new hire, rather then to just test those who were running the equipment. I can only guess that it was a case of CYA for the company, so that someone applying for a forklift driving job didn’t sue the company because they were tested but the office workers were not.

18

Lawyers are probably stricter than most, since being licensed allows you to practice before the state courts and that sort of thing. In my professional of actuarial science, the Casualty Actuarial Society didn’t do a background check when I joined. It was just pass your exams, pay your dues, and get a couple of letters of recommendation. Being a member allows me the august privilege of signing Actuarial Statements of Opinion, which are required from insurance companies in various contexts.