Avoiding the Legal Pitfalls of the Hiring Process

Avoiding the Legal Pitfalls of the Hiring Process

hr-hiringSmall business owners often don’t have the resources to hire a fully staffed and experienced Human Resources Department. That leaves the owner or his General Manager to navigate the tricky laws surrounding the hiring practice. When was the last time you brushed up on the federal laws surrounding the application and interview process? Do you know what is legal to ask and say, and what areas must be avoided altogether? Here is a glimpse into the answers to those questions related to the hiring process.

Be Careful What You Ask

Regarding both the application and interview, every question you ask is perceived by the law as being relevant to your hiring process. So, before you ask a question, make sure that it pertains to potential employment, but, most importantly, make sure the questions you ask are legal. Certain areas of questioning are prohibited by state and federal law. Obvious examples include those involving the applicant’s religion, age, and race or ethnicity, among others. Additionally, some states have laws that include additional protected classes, and some even prohibit the inclusion of questions related to criminal history. For specific information about your location, as well as to find out about exceptions to these laws, contact your closest state EEOC office.

Job Description, Application and Hiring

Aside from ensuring that the questions you ask on the application and during the interview are legal and relevant, there are a few more things that must be considered when preparing for the hiring process. For example, when drafting the application, make sure to include the statement that you are an equal opportunity employer, and do everything you can to follow through on that claim. Also, add to the application verbiage that explains the application is not a guarantee of employment.

Do the same during the interview by avoiding language that suggests the applicant has been awarded the position. In order to assist you in your endeavor to truly be an equal opportunity employer, consider having more than one person interview the candidates. Alternatively, multiple people can sit on the interview panel. You will get diverse feedback that should help you choose the most qualified candidate.

Related to the job description, it is illegal to include information in the posting that refers to a preference for or against any legally protected class. As with the application and hiring questions, there are exceptions, but the job description should be reviewed by a qualified professional, such as a lawyer, before posting it.

Background Checks

The same sentiment that applies to applications and interviews should also apply to background checks. The federal government expressly forbids inquiries about disabilities, but other classes, such as gender, religion or nationality are not covered. Additionally, each state may have supplemental laws in place. Regardless, inquiries that seek to uncover information about anything unrelated to the job or the person’s qualifications can be used against an employer in a discrimination suit. So it’s best to avoid them altogether.

The most important step in your hiring process happens before you even release the job posting or application. As mentioned earlier, you should take your revised application and the job description to an attorney who specializes in employment law. Do this prior to releasing them. Make sure that what you have is sound and legal before you present it to the public. One erroneous inclusion or exclusion, however innocuous it may seem, can result in penalties and fines from the EEOC.