The Hiring Process: A Primer of Legal Do's and Don'ts

Workforce Management
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The Hiring Process: A Primer of Legal Do's and Don'ts
Discrimination can occur at any stage of the hiring process, including the initial application, the interview, the reference check, and the ultimate decision whether to hire. Here is a general overview of important considerations for employers. By Chad J. Layton

Introduction: So Many Ways to Go WrongThe Pre-Interview ProcessThe InterviewThe Post-Interview ProcessThe Hiring DecisionConclusion: Be Prepared, Be Reasonable, Be Sure It’s Related to the Work at Hand

Introduction: So Many Ways to Go Wrong The solicitation and evaluation of employment candidates and the decision-making that goes into the remainder of the hiring process present employers with an array of difficult issues. Finding an employee who provides the right fit is frequently a challenge, and the search for quality employees can be daunting. The law recognizes an employer’s right to seek, assess, and hire appropriate candidates. That right, however, is not unfettered. Employers must, for example, avoid illegal discrimination.
Discrimination can occur at any stage of the hiring process, including the initial application, the interview, the reference check or the ultimate decision whether to hire. Here is a general overview of important considerations for employers, informed by both federal and state law.
The Pre-Interview ProcessSolicitation and application There are many issues for an employer to consider during the pre-interview process, starting with how to solicit candidates. The solicitation should include basic information such as the job title, a brief description of the duties, the rate of pay and the anticipated hours during which the employee will be expected to work. Not surprisingly, improper advertisements for employment can lead to lawsuits. Employers should, as a general rule, avoid publishing or disseminating ads that suggest a preference or limitation based on the many protected classes such as race, color, national origin and citizenship, religion, sex, marital status, pregnancy, sexual orientation, disability, age (40 and older) or military status.
The employment application allows the employer to obtain information from the potential employee, and also provides an opportunity for the employer to further introduce itself and its business to potential employees. Even in those instances where employers receive unsolicited résumés from candidates, it is still advisable to require candidates for most positions to submit employment applications. The application begins the all-important documentation process, and ensures that the employer obtains relevant information regarding the candidate.
The application should identify the employment position for which the employer is seeking applicants. The employer may consider providing a brief description of the requisite skills. The employer may want to describe the hours and days of employment for the position to be filled, and may even consider asking a candidate about his or her wage or salary expectations.
The application should also ask about educational and professional information, including current and prior employers and their contact information, dates of employment, wages, supervisors’ names and titles, the candidate’s prior job responsibilities and titles, the reason the employee left the prior jobs, and the employee’s educational background, if appropriate. However, the employer should not ask about the dates on which the employee graduated from high school or college, as such questions may suggest discrimination against older applicants. Further, the employer should only ask about graduation or major course of study if it is somehow related to the job.
Finally, an employer may also want to ask about special training or skills that may be required for the job, as well as a statement that the applicant will be legally eligible for employment in this country at the time of hire.
There are additional, specific areas the employer must consider. For example, an employer can ask whether a candidate has ever pleaded guilty to or been convicted of a felony. However, the application must state that a "yes" answer will not, in and of itself, disqualify the candidate. An employer can ask about other crimes that may be related to job qualifications. For example, a grade school may ask a potential teacher about any convictions for crimes involving the victimization of children. The employer, however, cannot ask about prior arrests. Additionally, an employer can ask a candidate about service in the military if it relates to a qualification for employment. However, the employer cannot ask whether a candidate was honorably or dishonorably discharged, or served in a foreign military. Employers also cannot request a candidate’s military records. [To see the entire primer, go to: http://www.workforce.com/archive/feature/25/43/36/index.php ]