Legal Updates

Keep Out Of Legal Hot Soup: Top 10 Tips For More Effective Hiring

In our experience,[1] managers who make hiring decisions are generally extremely busy (or at least very busy) – so, for you, here is a relatively quick list of the Top 10 Tips for achieving more effective hiring from a legal perspective.  This is the short version on how to maximize the effectiveness of your hiring process and minimize the risk that you might trip over the employment laws that regulate that process.  Hopefully, this checklist will be a reference tool, to help you and your organization to improve your hiring and selection process.

1. Sharpen the Job Description.

The first step in effective hiring is defining the position to be filled and clearly identifying the required skills and qualifications.  A detailed, accurate job description should sharpen the focus on successfully meeting business objectives.

Ensuring that job descriptions are accurate will also facilitate compliance with federal and state laws and minimize other future legal risks.  E.g., when an employee cannot perform an “essential function” of his or her job under the federal Americans with Disabilities Act (“ADA”), you want his job description to explicitly identify those “essential functions.”

Practical Tip: Update each job description once per year and when posting an opening for the position.

2. Focus on Job-Related Criteria.

Evaluate candidates based on the merits – their knowledge, skills, and abilities, as well as any relevant job experience, education, licenses, and certifications.  Consistently focusing on job duties, skills and qualifications should help minimize the risk of claims of employment discrimination.

Do not ask for or use information about a candidate’s age, race, sex, marital status, family status, disabilities, veteran status or other protected characteristic,[2] especially when it is discernible from the application.  (By the way, we have a much longer list of what not to ask – but these are the basics.  See #3 and #4, below, as well.)

Practical Tip: Human Resources should black out irrelevant data before giving a copy of the resume or application to the hiring manager.

3. Make Your Job Application More Strategic.

Job applications should (a) seek only relevant information, and (b) protect the employer.  Be sure that your application does both.

Job applications should steer clear of the “protected categories” (see #2 above, and #4 below).  For example, they should not ask for date of birth or visa status.

Job applications should include basic legal protections, such as:

• A signed certification that the application is accurate, acknowledging that any misrepresentation will be grounds for discharge.  (One recent survey found that nearly 43% of resumes had at least one inaccuracy.)

• The applicant’s authorization to verify all information on the application, and releasing the employer from any resulting liability.

• Language required by applicable state law.  (Note: some state laws also impose requirements about what must not be included in job applications.)

Practical Tip: Have employment counsel review your job application.

4. Ask Permissible Questions Consistently.

Asking permissible questions consistently is critically important.  A lawful question that is not asked consistently of all applicants can raise issues of discrimination.

Do not ask about: age; arrests; citizenship; disability; emergency contact information; marital status; English language skills (unless it is a valid requirement of the job); height and weight; name change; spouse; children; organization or club membership; race; color; religion; sex; national origin; union affiliation; or weekend work/shift changes (unless a job requirement).  Questions in these areas could be construed as seeking information about an applicant’s protected class.

Practical Tip: Create a standard set of questions, and take careful notes of each applicant’s answers.

5. Pre-Employment Tests Must Be Job-Related and Necessary.

If you use a “pre-employment test,” which can include anything from a physical agility test to a math test to a reading comprehension test to a sophisticated personality profile test (such as the Myers-Briggs test), you want to be sure that your use of the test is legally valid.  (Also, see #9 below regarding when to administer any such tests that might also be viewed as medical in nature.)

Specifically, these tests must be job-related and consistent with business necessity, because federal and state laws prohibit the use of tests that disproportionately screen out women and minority applicants.

Practical Tip: Consult with employment counsel and test validation experts to ensure proper validation of employment skill tests before using them.

6. Draft Offer Letters with Care.

If not drafted properly, offer letters can become employment contracts – so review them carefully for accuracy and for the basic legal protections!  Offer letters often include statements that could create potential contract claims, such as references to “annual” salary or performance reviews.  Watch out for these inadvertent promises, and be sure to include a statement that the offer letter does not constitute an employment contract for a definite period.

A job offer may be conditioned on the results of background checks, reference checks, drug tests, fitness-for-duty exams, or on signing a non-compete agreement, etc.[3] The offer should be conditioned on providing required Form I-9 documentation, as well.  Be sure to refer explicitly to any such “conditions” in the offer letter.

Practical Tip: Add an “at-will” employment statement to the offer letter.

7. Conduct Background Checks.

To avoid liability for negligent hiring and workplace violence, employers should conduct appropriate background checks of otherwise successful applicants.  Background checks can include inquiries regarding personal references, criminal history, credit history, and driving records.  However, be aware that numerous federal and state laws impose stringent requirements on employers using these kinds of background checks.

If your company uses any of these background checks, be sure that you and your company protect yourselves by using the required disclosure forms to job applicants about the information sought, and obtaining a written authorization signed by the applicant, including not only the required language but also a release and other recommended protections.

Practical Tip: Consult with counsel and use the proper authorization and disclosure forms for background checks.

8. Contact References.

Again, an employer may be held liable for claims such as negligent hiring and workplace violence if it does not make sufficient efforts to obtain background information regarding employees who later commit some kind of act of workplace violence, for example.  Thus, employers should make every effort to contact an applicant’s references before employing the applicant.

This may present a real challenge, however, as employers are often reluctant to provide meaningful references – for fear of defamation lawsuits if their references become the perceived basis for a lost job opportunity.

Thus, to help facilitate checking references, you should obtain written authorization from job applicants to contact all references, including former and present employers, and be sure to keep a record of your efforts.

Practical Tip: Document all contacts with references and former employers, including unsuccessful efforts to obtain information.

9. Conduct Post-Offer Medical Examinations.

Medical examinations should not be conducted until after a conditional job offer has been extended.  A medical examination is any procedure or test that seeks information about an applicant’s physical or mental health.

It is important to determine whether a pre-employment examination could be considered medical, as that affects when the examination can be administered.

Drug tests, physical fitness tests, and physical agility tests are generally not considered medical examinations, but at least one court has found that a personality test may be a medical examination if it is designed, in part, to reveal mental illness.

Practical Tip: Administer any pre-employment examination that may be considered medical after a conditional job offer has been extended.

10. Confirm Authorization to Work in the United States.

The Immigration Reform and Control Act (“IRCA”) requires employers to verify that all new employees are authorized to work in the United States.  To that end, employers must complete a Form I-9 for all employees, including U.S. citizens.  However, this Form I-9 information and documentation may be requested only after an offer of employment has been extended.

If an employee fails to provide the requisite documentation within three (3) days after employment commences, the law requires that the individual’s employment be terminated.

Practical Tip: An employer must retain completed Form I-9s for three (3) years after the employee’s date of hire or for one (1) year after the date the individual’s employment ends, whichever is longer.  These Form I-9s should be maintained in their own file or binder, separate from employee personnel files.

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Taking time to enhance your organization’s hiring strategies by incorporating the tips outlined above should increase the effectiveness of your hiring decisions, while also helping to minimize the risks of liability under federal and state employment laws.  In the long run, these improvements should save your organization time and money by increasing productivity and retention rates, and reducing legal risks.

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