Interviewing and Selecting Job Candidates: Rhode Island
Federal law and guidance on this subject should be reviewed together with this section.
Author: Jessica Sussman
- Rhode Island goes further than federal law both in the scope of its protections from discrimination, and the number of employees needed for coverage. See The Selection Process.
- Employers may not consider any of the characteristics protected by the Rhode Island Fair Employment Practices Act (FEPA) in making hiring decisions. See The Selection Process.
- Rhode Island employers may not inquire about an applicant's arrest record subject to a limited exception for law enforcement jobs. See Arrest and Conviction Inquiries.
- Most private employers in Rhode Island are prohibited from asking criminal history questions on job applications. See Ban the Box Law.
- Employers may not use job application forms to obtain any information about a candidate protected by Rhode Island law. See Job Applications.
- Rhode Island bars employers from asking job applicants or employees for access to their personal social media accounts. See Social Media Privacy.
- Rhode Island employers may not discriminate against job applicants based on their housing status. See Homelessness - Housing Status.
- Checking a prospective employee's references is a good practice to avoid a future negligent hiring claim. See Reference Checks.
The Selection Process
Rhode Island's Fair Employment Practices Act (FEPA) prohibits discrimination in employment against an individual of the basis of the following characteristics:
- National Origin;
- Sex (including pregnancy, childbirth and related medical conditions);
- Disability (physical or mental);
- Age (40 and older);
- Genetic Information;
- Sexual Orientation (including perceived sexual orientation);
- Domestic abuse victim;
- Gender identity or expression; and
- Off-duty smoking or tobacco use
Accordingly, an employer may not consider any of the above characteristics of an applicant during the interview and selection process.
Protecting characteristics such as gender identity or expression is not the only way that Rhode Island goes beyond federal antidiscrimination law. For instance, the FEPA applies to all Rhode Island employers with four or more employees. In contrast, federal laws such as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act cover employers with 15 or more employees while the Age Discrimination in Employment Act (ADEA) only applies to employers with 20 or more employees.
Rhode Island employers must ensure that all advertisements and notices for employment comply with state and federal antidiscrimaintion laws. Employers should be cautious about the language and pictures depicted in order to avoid violations of the FEPA.
Employers also should refrain from advertisements that refer to any characteristic protected by the FEPA, including but not limited to, age, race, gender or disability. For example, they should not use language directing the advertisement at only males or that depict only young Caucasian employees. Doing so may violate both state and federal discrimination laws.
Arrest and Conviction Inquiries
Rhode Island employers with four or more employees may not inquire about a job applicant's arrest record either orally or in writing unless the applicant is applying for a law enforcement position. See +RI Gen. Laws § 28-5-7(7). Employers are permitted to inquire about conviction records. See +RI Gen. Laws § 28-5-7(7).
However, if a job applicant has had a conviction expunged, the applicant can respond that he or she has not been convicted of a crime. Rhode Island has carved out an exception to this law for job applicants in law enforcement, teaching and with early childhood education facilities. These individuals are required to disclose the fact of a conviction as a condition of employment, and the custodian of records shall disclose the existence of the expunged record. See +RI Gen. Laws § 12-1.3-4.
Although employers may consider an applicant's convictions during the hiring process, employers should not have blanket polices that all applicants with convictions are automatically barred from consideration. Doing so could violate state law.
Rhode Island employers also should be aware that the state recently passed a Ban the Box law to restrict employers from asking prospective employees to check off a box on job applications indicating whether they have been convicted of a crime.
Ban the Box Law
Rhode Island has a Ban the Box law that prohibits employers from asking criminal history questions on initial job applications. The term, "Ban the Box, refers to the box on job applications that prospective employees are asked to check off if they have ever been convicted of a crime.
The new law applies to public employers as well as private employers with four or more employees. The measure empowers the Rhode Island Commission on Human Rights and the state's courts to provide a range of remedies to aggrieved applicants, including damages, attorney's fees and costs. 2013 Bill Tracking RI H.B. 5507.
Rhode Island employers will still be able to ask about an applicant's criminal background during a job interview and any time afterwards during the hiring process. In addition, limited exceptions are provided at the application stage. These exceptions include:
- Applications for law enforcement agency jobs;
- Situations where federal or state law prevents an employer from hiring persons convicted of a specified crime; and
- Where a standard fidelity bond is a job requirement and a prior offense would disqualify an applicant from obtaining such a bond.
Employers should retain employment applications of candidates for at least three years. In addition, employers should retain applications of those hired for three years after the employee has separated from the employer.
Rhode Island makes it illegal for an employer to use any application form to find out information, directly or indirectly, about a candidate's color, religion, sex, disability, sexual orientation, age or country of ancestry. Generally, employers may not ask questions on an application that will require the applicant to reveal their gender, race, birth date, whether the applicant has a disability or has ever been treated for mental illness.
An employer also should proceed cautiously before asking applicants to execute consent forms giving the employer unrestricted access to medical, school, employment and/or criminal records that pertain to the applicant. Such blanket consent forms provide the employer access to records that may reveal details about an applicant's age, arrest record and physical or mental disabilities that the employer may not be entitled to have under the Rhode Island Fair Employment Practices Act.
Rhode Island law prohibits inquiries that will elicit information about an applicant's mental or physical disabilities, and medical questions generally perform that illegal function. The Americans with Disabilities Act (ADA), which applies to all businesses with 15 or more employees, provides broad-based protection against questions in the employment process that relate to an applicant's disabilities. The ADA specifically bans all preemployment questions relating to medical conditions and disabilities until a conditional employment offer is made.
Only after a job offer has been made, may an employer require an applicant to undergo a medical examination or respond to medical inquiries. If an employer requires an examination at this stage, it must be required of all applicants for a particular job category, not just of selected applicants.
While the final offer of employment may be conditioned on the results of those tests or medical inquiries, the offer can be withdrawn only if the results indicate that the applicant is no longer qualified to perform the job even if he or she were given reasonable accommodation.
Family Planning Inquiries
Employers generally should refrain from requesting information about an applicant's plans to have children or their family responsibilities. An employer that asks such questions only of female job candidates risks running afoul of both state and federal antidiscrimination laws.
Social Media Privacy
Rhode Island has enacted a law protecting the social media privacy of job applicants as well as employees. R.I. Gen. Laws § 28-56-1. The 2014 Student and Employee Social Media Privacy Acts prohibit Rhode Island employers from:
- Requiring, requesting, suggesting or causing an applicant or employee to disclose personal social media information;
- Compelling an applicant to add anyone, including the employer or its agent, to a list of contacts associated with a personal social media account; or
- Discharging or otherwise penalizing an employee for refusing to divulge social media information.
A job applicant or employee who believes their rights have been violated may bring a lawsuit seeking actual and punitive damages as well as other relief from the employer. The law does not apply to information about a job applicant or employee that is publicly available.
Homelessness - Housing Status
Rhode Island prohibits employers from discriminating against homeless individuals.
The Homeless Bill of Rights prevents employers from treating individuals unfairly based on their housing status. In doing so, it essentially creates a new protected class under employment discrimination laws.
The law states that homeless individuals have the right not to face discrimination while seeking or maintaining employment due to their lack of a permanent mailing address.
It also ensures that homeless individuals have a right to equal treatment by all state and municipal agencies without discrimination on the basis of housing status.
Individuals may bring a civil lawsuit against violators for injunctive relief, actual damages and reasonable attorneys' fees.
An employer may ask questions about a job applicant's age, sex or lack of a particular disability in very limited circumstances. However, the employer must have received a certification of a bona fide occupational qualification (BFOQ) from the Rhode Island Commission for Human Rights or a state or federal court. The employer also must clearly state that the Rhode Island Commission for Human Rights, or a state or federal court has certified the particular BFOQ.
Employers should always check a prospective employee's references. Doing so may reduce the risk of a future negligent hiring lawsuit or prove helpful in defending against such a claim. In addition, employers should ask questions designed to ensure the job candidate is not a risk to the company.
If an employer could have discovered an applicant was a threat to employees or others by conducting a reference check, employers will not be able to defend negligent hiring claims by asserting that the employer had no actual knowledge of the employee's violent tendencies.
Employers also should obtain a waiver from the candidate providing permission for the employer to contact his or her references, and permitting the employer to investigate anything contained in the potential employee's job application or resume.
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