Hiring Decisions and the NFL Draft

You can learn a lot about reputational harm and hiring decisions from the NFL. A college football player potentially lost millions recently as his draft stock tumbled in the wake of a rape investigation weeks before the NFL Draft. Granted, the player was selected in the first round, but at a lower pick than originally projected. Reportedly, numerous teams called the player within 48-hours of the disclosure of the investigation to hear his version of events. Some teams reportedly administered a polygraph test to the player. But what’s enough? What steps must an employer take to investigate potential employees? A related question: what’s the potential reputational cost to the employer? These are critical employment decisions.

The impact of the rape investigation on the player’s draft stock and the collective scrambling by the NFL to ascertain the veracity of the allegations highlights the importance of due diligence in the hiring process. Although the NFL draft is unique, and not perfectly replicated in the business world, traditional employers also find themselves under pressure to make quick hiring decisions, particularly for key positions or other highly sought-after employees.

In such situations, employers should conduct thorough background check investigations within the confines of the law. Employers need to be cognizant of applicable federal, state, and local laws governing social media searches of applicants, and to be wary of making hiring decisions based on protected information about an applicant that may be disclosed in a social media search, such as the applicant’s race, religion, or sexual orientation.

Employers must coordinate an interview process that targets goals and effectively evaluates talent.

Employers should also be sure to comply with “ban the box” legislation within their state, which generally restrict employers from inquiring about an applicant’s criminal background during the initial stages of the application process. Additionally, to the extent that employers use consumer reports to make hiring decisions, they should follow the procedural requirements of the Fair Credit Reporting Act.

Creating a written checklist of lawful points of inquiry to be addressed for every applicant  and adhering to this checklist for every applicant should allow employers to conduct thorough investigations without running afoul of the law.


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