How to Comply With Hiring Laws and Reduce Legal Risk
Regardless of the current nature of the job market, employers must always approach the recruitment process with care and follow a legally defensible hiring process. If you fail to take hiring laws seriously, just one misstep could open your company up to costly litigation, or worse.
Federal and state employment laws (and some local ordinances) generally seek to protect job applicants and current employees from discrimination, exploitation, and other such offenses. Many of these protections begin the moment an individual submits a job application to your company, even if you don’t interview that person or even read their resume.
In addition to exposing your company to liability, regardless of intention, ignoring crucial hiring legal issues could cause you to miss out on the best candidates and leave you with a less-diverse workforce. While it’s essential to follow employment laws and regulations, a little bit of common sense goes a long way toward hiring the best employees and reducing your legal risk.
Hiring Laws to Consider
It is illegal to discriminate against a job candidate or applicant in job advertisements, recruiting practices, applications, background checks, job referrals, pre-employment assessments, and virtually every aspect of the employment relationship. While states may provide additional protections, the federal government (through the Equal Employment Opportunity Commission) prohibits discrimination on the basis of the following characteristics:
- Age (over 40)
- Gender identity
- Genetic information
- National origin
- Sexual orientation
Other laws may also come into play during the hiring process. These include (mainly state) laws limiting the use of criminal background checks, prohibiting credit checks, banning employers from asking for an applicant’s salary history, or requiring employers to indicate the salary or pay range on their job postings (just to name a few). It’s always a wise investment to consult with an attorney as you plan out your recruiting and hiring strategy.
Determine What You Need in a New Employee
The first step in your recruiting process should be to prepare a well thought-out job description that can be used for both hiring and employment purposes. When creating a job description, make sure you’re compliant with hiring laws and keep the following in mind:
- DO list the duties and responsibilities of the job, moving from general to specific
- DO state job qualifications and prerequisites in an objective manner. For example: “Must have bachelor’s degree” or “Must be proficient in PowerPoint and Excel.”
- DO include language indicating that you are an “Equal Opportunity Employer” and that nothing in the job posting or description should be construed as an offer or guarantee of employment.
- DO NOT use language that states or suggests a preference for a particular gender, race, age, or other such quality. For example: “Looking for a young, energetic team player” suggests an age preference and is likely illegal. A better option: “Looking for a hard-working team player.”
Attract Diverse and Qualified Applicants
Great workers can be found from a variety of sources, and the savvy employer will look to a number of them for its hiring needs. For example, recruit at a broad range of colleges and technical schools, attend minority-sponsored job fairs, advertise in relevant community newspapers and if possible, seek partnerships with organizations that are a source of diverse employees.
You can learn a lot from companies that have a strong commitment to diversity, which goes above and beyond the requirements of hiring laws. And keep in mind: unless your workforce is already diverse, relying heavily on recommendations from current employees will only maintain the status quo and will not help you increase diversity.
Avoid Application Pitfalls
Failing to recognize and address common mistakes early in the hiring process can open your company up to liability down the road. Ask yourself the following questions before you embark on any recruiting and hiring efforts:
- Has your company reviewed its job application forms with human resources or a lawyer in the past two years?
- If your organization is a federal contractor, does it conform to the latest OFCCP rules for accepting electronic job applications?
- Do you regularly train your managers about updates to state or federal employment laws?
While answering “no” or “I don’t know” to any of these questions doesn’t mean your company is violating hiring laws, you will need to get some clarity before you proceed. It’s a good idea to review all job descriptions and application materials with an attorney to make certain they are objective and don’t ask for inappropriate information.
Issues to consider and discuss with experienced employment counsel include (but are not limited to):
- Adding a statement on the application that it does not constitute a promise or guarantee of employment.
- Drafting a separate document asking for approval to conduct a background check that conforms with the Fair Credit Reporting Act, if your company intends to perform such checks.
- How to conform to OFCCP standards and recordkeeping guidelines, if your organization is a federal contractor.
- Ensuring that any of the job requirements don’t inadvertently discriminate against protected individuals, unless it’s absolutely essential to the role (e.g., does your dress code discriminate against Muslim women who wear a hijab?).
Ask Legal Interview Questions
As with the application process, employers need to think critically about their interview procedure to make sure that every person involved in the process is familiar with the “do’s and don’ts” of a legal and effective interview.
Remember, hiring laws presume that all questions asked on an application or in a personal interview will be used in the hiring decision. Therefore, it is important to limit topics to only those issues that are needed to evaluate an applicant’s qualifications for the particular position. When training interviewers on proper techniques, include these suggestions:
- Try to ask open ended questions that will require the candidate to discuss their qualifications, avoiding simple “yes” or “no” questions.
- Evaluate responses critically. Did the applicant answer the questions fully? Did they provide information to help evaluate their qualifications and experience?
- Do not make any promises or guarantees with regard to the job or future employment. For example, avoid comments such as “You are by far the strongest candidate I’ve interviewed.”
- Take notes to help remember each applicant, keeping them separate from the job application or resume, and never indicate an applicant’s race, age, national origin, gender, disability or other such identifier, either outright or by code. Such behavior can be discriminatory and illegal.
- Avoid questions about the candidate’s age, family, or anything else that would reveal protected characteristics.
- If possible, have more than one person interview each candidate.
- Regarding your employment applications, consider including EEO statement and a statement that the application is not an offer of employment or an employment contract.
Hire the Right People, Legally, for Your Business
No matter what industry you’re in or what size business you run, adhering to hiring laws and best practices is critical to your success. Even accidental violations of employment laws can create expensive, and possibly terminal, problems. Find great candidates today by posting your job for free.
Legal Disclaimer: None of the information provided herein constitutes legal advice on behalf of Monster.