Employment Law Issues – Is Your Team Growing in 2018?
Is Your Team Growing in 2018? The 5 Stages to Hiring and Some Legal Aspects to Consider
Realizing that your business or team needs to grow for 2018 is exciting, and you will want to recruit the most talented people you can find. But before you begin the recruitment process, you need to take careful steps to determine which areas of your business need employees and then how to go about recruiting and hiring the best personnel. Through this process, you will need to carefully consider the legal aspects involved.
Generally, the hiring process consists of five stages:
- Performing a Needs Assessment
- Advertising and Recruiting
- Selection Standards and Testing
- The Hiring Decision
Each of these stages have legal aspects that you, your HR department, or whoever is delegated to do the search and hire new employees must consider to avoid potential legal issues and entanglements.
Stage 1: Needs Assessment
Before you begin actively recruiting candidates, know what kind of employee you need and the tasks that the job entails. You may already have a job description, but is it accurate and descriptive enough? What should be listed as the qualifications and skills needed? Do you want someone with a certain educational level, proven industry knowledge, and/or certain years of experience (or more) in the subject field or area?
The job description must also accurately reflect what the job entails. The person or staff that will be drafting the job description should take the time to observe current employees, if the job is currently being performed, and to match the job description with the actual duties. In any event, a job description should include:
- The title and purpose of the job
- Expected working hours
- Minimum ability requirements (physical, knowledge of certain programs or apps, skills involved)
- What is expected in terms of results
- If managerial responsibilities are included
- Essential job functions, in order of importance
- That a performance evaluation will be periodically conducted
- Consequences if the job is not performed to expectations
- You may want to include the person’s exempt classification, name of supervisor, and department
If your employees are “at-will”, it is highly recommended that the job description contain a statement that to the effect that the description does not constitute a contract of employment, and that the employee is at-will.
Although no company is legally required to have job descriptions, you can more easily comply with state and federal labor and employment laws if you use them. For instance, it can be used to rebut an allegation that you failed to provide an employee a reasonable accommodation to perform essential job functions under the ADA.
Further, sound job descriptions may be able to confirm a worker’s exempt status and defend against allegations of discrimination based on compensation, discipline, promotion, or termination. To be sure, job descriptions are needed if an employee is requesting a medical leave under the Federal Medical Leave Act (FMLA) to assist the health care provider in completing the required certification form and to determine when the employee may return to work.
- Advertising and Recruiting
Although you will likely have to train new employees, it is ideal to have someone who can start immediately. If you can, look to your current employees first. This is a great boost to company morale and an expression of your appreciation for their hard work and skills. Or, you may even wish to ask current employers if they are aware of someone who fits the job description.
Where to Recruit
Other areas where you may find qualified candidates and ensure compliance with affirmative action requirements include:
- Online job boards
- Professional association websites
- University placement offices
- Executive search firms or recruiters
- LinkedIn and other social media sites
- State and federal employment agencies
- Industry conferences or related associations
If you are using social media sites, use them as an extension of the person’s resume. You may have a job opening where familiarity with social media and how to use it is part of the job description. But if you find something on a site that you feel is disconcerting, save a screenshot of it if you may have at least partially relied on it to disqualify that person.
Generally, do not advertise for someone of a particular sex, race, religion, or age, though there are exceptions. All potential applicants must have the same or equal opportunity to apply, so post your ad in locations that are accessible to persons of different disabilities.
You can base your ultimate hiring decision only on qualifications, skills, and experience. If you find that all past persons for this particular position have been individuals of a particular sex, race, religion, or age, and all other qualified candidates were screened out, you may have a problem. Include in your advertising: “We are an equal opportunity employer. We do not discriminate on the basis of race, religion, color, sex, age, national origin, disability, or any other basis prohibited by federal, state, or local law.” This demonstrates your commitment to equal treatment and fairness in hiring and promotions.
If you are receiving unsolicited resumes for an open position and decide to only consider some, then those applicants whose resumes you tossed out might be considered applicants for purposes of Title VII of the Civil Rights Act, the law that prohibits employment discrimination based on race, color, religion, sex, and national origin, as well as the ADA. To qualify as an applicant, the following criteria must be present:
- As employer, you are seeking applicants for a particular position
- The applicant has followed all of your standards and instructions for submitting an application
- The applicant has expressed an interest in the position
If you are receiving such resumes, then you will need to establish procedures for dealing with them. Any internet selection criteria must not create a disproportionate impact on any one targeted group, must be job-related and must be consistent with business necessity.
Screening candidates is critical because if you hire someone who harms another employee, customer, or someone you do business with, you may face civil liability, especially if you failed to conduct a proper background check or neglected to use other established screening techniques. For example, if an employee assaults or sexually harasses another employee or customer, you may liability.
Questionnaires or Interview Questions
Screening questionnaires and/or screening interviews are a critical part of narrowing down your applicant list. However, the questions that are asked of an applicant can form the basis for legal liability. For instance, your questionnaire or in-person questions should not include these topics:
- Marital status
- Age or date of birth
- If the person has children or plans to have children
- Union activities
- Medical condition
- Past medical conditions
- If ever hospitalized
- If ever treated for a mental condition
- Days missed in other job due to illness
- Reasons for job absences
- Physical defects
- Disabilities or impairments that may affect job performance (although you can ask if the person needs an accommodation to perform essential functions of the job)
- Drugs you are taking
- Drug addiction
- Past worker’s compensation claims
- Past arrest records (may inquire about current arrests)
- Conviction record unless circumstances are substantially related to circumstances of the job: add statement that “a conviction will not necessarily disqualify you from the job and will be considered only as may relate to the job you are seeking.”
- If the person smokes or drinks alcohol
- If they serve in the military such as the National Guard or state defense force
Even if the applicant volunteers any of this information, do not pursue it. Just because they brought it up does not make it an “okay” topic for discussion. This includes making a comment or joke about an applicant’s ethnic name or origin. These subjects are not substantially related to the job and may expose you to a claim of discrimination or bias if the person is not hired. However, some of these questions may be asked after a conditional job offer has been made to the individual, though any hiring decision should only rely on what is considered relevant information.
All questions should be relevant and related to the position and to the applicant’s experience and skills. If the question is not needed or relevant or does not help you to find the most qualified candidate, then do not ask it.
Screening is also important for determining if what the applicants have reported to you is accurate, particularly as to their educational achievements and degrees, background, and their job experience.
Screening tools may include:
- Criminal background checks–state law dictates how to conduct such checks. One useful resource is the Wisconsin Circuit Court Access Program(CCAP).
- Social Security number tracing to verify the applicant’s SSN, credit, and criminal history
- Drug testing–you need not do this but if you drug test, then all applicants must undergo it. Drug tests can avoid workplace injuries and possibly ascertain the trustworthiness of the applicant.
- Lie detectors–not legal to use unless the open position involves a certain type of business (e.g. certain alarm or guard services or armored car services or law enforcement agencies)
- Sex offender registries
- Motor vehicle records screening–for jobs involving use of a vehicle for outside sales, for making deliveries, or for trucking companies, this is especially important.
- Education verification–you will need applicant’s consent for release of school records
- Credit history–must be in accordance with the Fair Credit Reporting Act. May determine if poor credit might impact job performance or trustworthiness or be indicative of irresponsibility
Depending on the type of information you are seeking, you may need the applicant’s consent. Never skip this step, as doing so could create liability under state or federal law.
- Selection Standards and Testing
In addition to making sure your recruitment practices do not open you up to liability, you should also review the standards that you use for selecting candidates and any testing required of candidates. To protect your company, these should not have a disproportionate impact on a protected group.
When deciding what standards to use, you should always consider whether the standard is related to job performance, and whether you could document your need for the standard to be met. For example, physical requirements may be considered discriminatory to those with disabilities and women.
In addition, many employers use pre-employment testing or assessments. These can provide evidence that you were reasonable, prudent, and cautious in the manner in which you screened your applicants for job fitness.
You cannot obtain a pre-employment assessment form approved by the EEOC or Department of Labor since these departments do not offer endorsements. But you can see if the form has been validated by statistical reviews or studies to demonstrate that the test or assessment does as it purports to do, which is to measure an applicant’s readiness or fitness for a particular job. There are forms that publishers have validated or assert meet professional standards. You should use ones that were prepared by industrial or organizational psychologists, certified by human resource professionals, and proven in court as valid and reliable.
If using a personality test, use one that asks questions related solely to the work and is not generalized. As with assessment tests, be sure it is proven as a reliable or consistent measure of personality.
Physical and other tests may be used so long as they are not discriminatory, such as being used to screen out persons over a certain age or otherwise has a disparate impact on a protected group.
You can meet a challenge to your use of a particular test or device in your hiring practices if you can show:
- It is a reasonable, fair, and credible method of measuring job performance, and
- There are no alternative means to measure job performance for this position that do not discriminate
Any test that you use should be validated so that there is a greater likelihood that those scoring high will perform better on the job than those who score low. Validation consists of making sure that:
- What is being tested, such as knowledge, skills, and ability, is similar to what is required of the position
- The test is accurately weighted to reflect its importance to the position
- The test’s level or degree of difficulty is similar to that experienced for the position
To protect yourself further in the screening process, you should ask if the applicant requires special accommodations to take the assessment.
- Hiring Decision
Avoiding Claims of Discrimination
Most claims of discriminatory employment practices come at this stage. Your subjective and objective tests and standards are scrutinized and analyzed for any disparate impact. This means that the tools and methods you used to hire someone must not have shown that a certain protected group was not disproportionately affected. For instance, women, disabled persons, Jews, African-Americans, or persons over 40 were all screened out or have never been hired for this position.
To avoid claims of discrimination, you may want to consider in your hiring decision:
- Using standardized written tests
- Using members of protected groups in the hiring decision
- Eliminating subjective standards
- Being aware of your female-to-male ratios
- Creating and using written standards on hiring and promotion decisions
- Hiring an organizational or industrial psychologist to evaluate your selection standards or procedures
Equal pay is another issue that needs to be considered. Generally, a woman you are hiring should be paid the same as another or male employee doing similar or substantially equal work, unless you can show:
- There is a bona fide seniority system
- A merit system is in place
- You have standards that measure quality or quantity of work
- The pay discrepancy is not based on sex (but on experience, training, or education)
Avoiding Creating an Employment Contract
Do not use language in an offer of employment that can imply that a contractual relationship has been formed. For example, if you assure employment security, that may limit your company’s right to terminate an employee.
If you use an employee handbook, also make sure it has been reviewed by your attorney and contains specific language to avoid creating an employment contract.
Finally, if you have a federal employer ID number, you are required to report all new hires to the state within 20-days after the new employee, or rehire, begins work.
Rely on Professionals You Can Trust
As you can see, there are many potential mindfields in all stages of hiring. Putting in place a standard procedure and documenting your process can help avoid liability for you and your company. If you have any questions about this article or any other employment law issue, please contact us.
Disclaimer: The information contained in this post is for general informational purposes only and is not legal advice. Due to the rapidly changing nature of law, Schloemer Law Firm makes no warranty or guarantee concerning the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your unique circumstances before deciding to take—or refrain from taking—any action. If you need legal guidance, please contact us at 262-334-3471 or [email protected]