Tattoos, Piercings, and Googling Applicants – HR AMA With Paul Edwards (September 2023)

Hello AADOM Tribe! Welcome back to the monthly LIVE Ask Me Anything with Paul Edwards, CEDR CEO & Founder, and Heather Colicchio, founder and president of AADOM. Anytime you feel like a little extra perspective, or help might be nice throughout the year, keep sending your toughest HR questions to Paul and CEDR’s team of HR professionals. Our team will pick from the submitted dozens and do our absolute best to give some effective and creative ideas for solving your issue. To submit your questions, click here…Click to open link in a new tab…!

For the in-depth, expanded, and detailed answers…
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All your daily human resource issues likely have some state, federal, or local employment laws that you must comply with while, at the same time, trying to find the best human way to solve the core problem. In this series, we will fit the two together and help you all come up with some great resolutions.

Here are three of your best submissions this month, and wow, they are good:

• I recently interviewed a candidate I really liked, only to find out they had a criminal record when I Googled them after our conversation. Should I just put a halt to this person’s candidacy? Should I still perform a background check and potentially hire them regardless?
• I’m looking to hire a new employee, and they asked me about my policy on paying for employee CE. I normally don’t pay for employee CE, but it sounds important to this potential new employee. What is the best way to handle this?
• Most of my employees have visible tattoos and/or piercings, which has never been a problem. I’ve never considered having a policy covering this, but I could see how some tattoos and piercings could be problematic. Do I need to have this in my handbook?

All your daily human resource issues likely have some state, federal, or local employment laws that you must comply with while, at the same time, we know you are trying to find the best human way to solve the core problem. We will fit the two in this series together and help you devise some great resolutions.

Let’s Get to the Answers

Question: I recently interviewed a candidate I liked, only to find out they had a criminal record when I Googled them after our conversation. Should I just put a halt to this person’s candidacy?

The legal side of things: This “Googling applicants” thing is sort of a dirty little secret in the hiring world. We know that employers are doing it, but it’s actually a big no-no from an HR perspective…Click to open link in a new tab….

Before we get into the nitty-gritty of why it’s a problem, we want to start with a clear and unambiguous request: Please don’t Google your job applicants. And, if this is something you’ve been doing as part of your applicant research for liability and other reasons, please stop doing it.

The correct way to check an applicant’s criminal background is to perform a background check using a trusted company (we recommend that employers use a company called National Crime Search…Click to open link in a new tab…).

There are two main reasons for leaving this to the professionals: (1) they know what your state laws are, and (2) they can verify they’re finding records about the right person.

Many states have laws drastically limiting what information you can consider and how to use it. You may be restricted to only going back a certain number of years, and some types of information may need to be excluded from consideration. If you are a manager and you are googling people, you are putting yourself and the practice at considerable risk.

CEDR’s team of HR advisors has detailed state-by-state resources on what type of pre-employment inquiries can be made, and we’re happy to share that information with our members. But even with the treasure trove of resources our Compliance Department keeps up to date with all the changing laws, CEDR still doesn’t Google our own candidates.

If you Google Paul Edwards, you will find my name is associated with beheading my wife! As an aside, my former wife still has her head, so the info is inaccurate. She is actually an awesome person, by the way. I am still a viable, if not somewhat of a pain-in-the-ass candidate, but viable nonetheless.

First of all, the internet is FULL of unreliable information. Your search for information on a candidate could turn up unfavorable content about people with the same name that you might mistake for information about your candidate, leading you to exclude excellent candidates erroneously.

Or you might find information about charges that never resulted in a conviction, convictions that the state has expunged, or convictions that cannot legally be returned in a background check, all of which may be illegal to factor into your hiring decisions…Click to open link in a new tab…. You also might find information written by an unreliable third party that is false or misleading.

Even if you don’t find any sort of criminal history, you could come across a post about them being pregnant or disabled in some way and then assume you’d need to make various accommodations and decide not to hire them because of that (which is also illegal).

How would anyone even know? In discovery, lawyers can ask for all kinds of things and are designed to catch you doing exactly what you are not supposed to be doing. Nothing we do anymore is private.

So, again, at the risk of sounding repetitive, please, for your own benefit, do not Google your candidates as part of your hiring process.

Now for the human approach: All of this being said… if you’re already in too deep – you’ve Googled, you found some information you shouldn’t have, and now you’re not sure what to do – take a step back and ask yourself, “Did my opinion of this candidate change based on my internet searches?”

If so, put that aside for the time being. The information you found may be incorrect, and it may even be something you’re legally barred from considering. Or it could be spot-on and relevant. We know this can be hard as you can’t unsee what you found, but you can run a true background check later and go from there. It’s that simple. If you feel like they are a viable candidate, run the background check and go from there.

Try your best to look at everyone you’re considering objectively – Who is the most qualified? Who has the most experience? Who is likely to do the best job in the role? – and try to decide who to offer the job to based on those criteria without considering anything you learned online that you shouldn’t have.

Once you’ve made your objective decision, no matter who the candidate is, extend a conditional offer of employment. CEDR members will be familiar with seeing this language in the offer letters we prepare for you: “The offer conditioned upon your successful passing of a background check,” along with some other conditions such as being eligible to work in the United States, signing the employee handbook, meeting the essential duties of the position, etc.

This immediately communicates to your intended new hire that they must submit a background check. If there’s something serious in their background, seeing that in the letter along with the paperwork they need to sign (provided by your background check company) may make them withdraw their application immediately. If not, you run the background check and then evaluate the results the professionals give you.

If something questionable comes back from that screening, you can use it to inform your hiring decision as long as the information is pertinent to that employee’s job duties. For example, you probably wouldn’t want to hire someone with a history of theft into a role that handles cash. In contrast, a DUI from ten years ago when a candidate was fresh out of college is not likely to have much bearing on their ability to act as a competent dental assistant.

If there is something disqualifying in their history, check in with the experts on how to withdraw your job offer. Some states and cities have specific rules around how to do this.

Here’s an extra credit question: Should you look up your candidates on social media? No. Again, please, no! Hear more on this from CEDR’s heads of HR and Compliance on our podcast, What the Hell Just Happened?…Click to open link in a new tab…

Question: I’m looking to hire a new dental hygienist, and they asked me about my policy on paying for employee CE. I normally don’t pay for employee licensure CE, but it sounds important to this potential new employee. What is the best way to handle this?

The legal side of things: For this question, we assume we’re only talking about the hygienist taking CE courses to maintain their license. They are doing this on their own time and choosing their own courses. Pay obligations become very different if the practice were to step in and schedule, host, or suggest a specific course. Spoiler alert, it turns into an obligation.

When an individual needs to participate in continuing education (CE) to maintain a license or registration, that obligation falls solely on that individual. That obligation is for that individual’s license, not your business. This means you are not legally obligated to pay for their licensure fees or the CE required to maintain their license. But you can absolutely require them to keep up with those requirements and should be noting their renewal dates so you can verify they have done so.

Note this differs from federal law requiring dental practices to provide HIPAA training…Click to open link in a new tab… to their entire workforce, OSHA training requirements, or state laws requiring dental offices to have CPR-trained clinical staff…Click to open link in a new tab…. Those requirements fall upon the business, which means it is the business’s obligation to pay for the cost of the training courses as well as the employees’ time spent in training.

Now for the human approach: While there’s no legal obligation to financially support license renewals or CEs specifically for employees’ licenses, offering such benefits is increasingly popular and attractive to job seekers and your current employees.

If this benefit isn’t currently offered, but a particular applicant (that really seems to be a difference maker…Click to open link in a new tab… that you want on your team) requests it, you can consider providing it as a way to encourage their acceptance of the role. However, be sure to put the conditions for being reimbersed in writing – either as part of the individual’s offer letter or add it to your Employee Handbook if you want to offer this benefit to others on your team.

If you’re considering providing CE benefits, here are some factors to consider:

• Determine which employee positions qualify for the benefit. Will it be available to all employees interested in professional development, or only license holders who are required to take CE?
• Establish when employees become eligible for this benefit. Is it after 90 days, six months, or one year of employment?
• Define the coverage of the benefit. Does it include the cost of CEs required for the license, license renewal fees, or both?
• Determine the monetary value of the benefit. Many employers set a maximum amount per year, sometimes varying by position or increasing over time.
• Decide on the reimbursement process. (Employees pay for and submit receipts, and then practice reimburses six months later if the employee is still there is one approach).

Once you’ve established these criteria, include the details in your employee handbook…Click to open link in a new tab… to ensure transparency. Additionally, highlight this benefit when advertising job openings…Click to open link in a new tab…, as it may attract candidates who value such support.

Do you have an HR question for Paul? Submit your HR questions for Paul to discuss on the next HR Tuesday LiveCast here…Click to open link in a new tab…!

Question: Most of my employees have visible tattoos and/or piercings, and it has never been a problem before. I’ve never considered having a policy covering this, but I could see how some tattoos and piercings could be problematic. Do I need to have this in my handbook?

The legal side of things: This is an interesting question as it’s one of those places where you will generally have quite a bit of discretion as an employer.

There’s no specific legal protection around tattoos or piercings, meaning it’s not unlawful to discriminate in what tattoos or piercings you find acceptable to be visible. This theoretically leaves you with a lot of leeway when choosing whether you want to allow or disallow people to have them at your practice.

As with most things, however, it’s not quite that easy. An outright ban on visible tattoos or facial piercings can still require some exceptions. There may be a legally protected reason behind the tattoo or piercing. This is not very common. However, if an employee or applicant were to tell you they have a specific tattoo or piercing due to their religious practices, then you need to consider accommodating it. In rare cases, tattoos can also be used as alerts for serious medical conditions.

Similarly, leaving things to the discretion of management can also raise some problems as it leaves a lot of room for employees to claim discrimination when that “discretion” seems to vary from person to person. The most common example of this is when a tattoo of a cross is deemed acceptable, but a symbol from another religion is not.

Now for the human approach: In today’s day and age, tattoos and piercings are becoming increasingly common and accepted, and you seem to be quite open to the idea of your employees having them, which makes things easy for you. We appreciate you thinking ahead, though, because you are right! Some tattoos and/or piercings can be problematic.

If you know your stance on tattoos, having a policy in your handbook that states it is always the best way to go. This ensures that it will be followed by all employees equally across the board. Getting help from an HR Expert on writing this policy can be your best bet, as the verbiage needs to accomplish what you need, which is not to cross any legal lines while also making it clear that if they tattoo clown lips around their actual lips, it’s not going to work for you.

Remember, HR TUESDAY DEPENDS ON THE AADOM TRIBE, ASKING GREAT HR-RELATED QUESTIONS! Submit your HR questions for Paul to discuss on the next HR Tuesday LiveCast here…Click to open link in a new tab…!