Pamela Devata Published in Security Management
"The Matrix Quandary"

Seyfarth Shaw Chicago partner Pamela Devata co-wrote an article published in the June 2011 issue of Security Management magazine on the topic of preemployment screening and the use of a decision matrix, in which a hiring manager can evaluate information acquired in a background report, to help select candidates.

Pam points out that there are risks of using a decision matrix, but one can be designed to "facilitate fair hiring" of qualified jobseekers without increasing liability, and "generally, the company's legal counsel can help ensure that the matrix achieves this objective." She also notes that there is no single matrix for an entire workforce and advises employers to avoid using one decision matrix for all positions.

She warns against standardizing hiring rules and gives the example of prohibiting the hiring of those previously convicted of a felony as employment decisions, without taking into account the bona fide occupational qualifications (BFOQ), may be judged discriminatory. According to the article, when it comes to criminal history, "the EEOC [Equal Employment Opportunity Commission] has opined that the employer's preemployment selection criteria should take into consideration factors such as the nature and seriousness of the offense, the length of time since the offense occurred, and the nature of the job."

A series of questions is posed to help employers build a matrix, which should continuously be under review and "considered a living document," and they include the following:

• Which job positions are open for applications?
• What are the essential factions and BFOQs for each of these positions as they relate to the background report?
• What are the appropriate background elements and what is the scope for each position?
• What is the appeals process for the decisions made using a matrix?
• Have all hiring managers been trained to address or refer applicant questions or concerns?
• Has this plan been evaluated by legal counsel for fair treatment, risk mitigation and consistency issues?

The article concludes by noting, "perhaps the most important step in building a decision matrix" is ensuring that an attorney reviews it in order to avoid any potential legal pitfalls.