Hiring even one new employee invokes no fewer than seven federal laws and probably a few state laws as well, says attorney Stephen R. Woods. How does an employer navigate this legal minefield? Woods offers five easy rules.
Woods, a shareholder with the national law firm of Ogletree Deakins, made his suggestions at the recent BLR Employment Law Update conference.
Rule 1. Cast a Wide Net
Many of the laws that affect hiring prohibit employers from discriminating against applicants on the basis of gender, race, color, religion, national origin, age, disability, pregnancy, and union activity, says Woods.
Casting a wide net means taking steps to make sure the company avoids discrimination by recruiting a diverse pool of applicants. Specifically, Woods recommends the following:
—Avoid “word of mouth” advertising. Relying on referrals from existing employees will likely result in an applicant pool that looks very much like the employees who made the referrals. If the company wants to attract a more diverse applicant pool, it will need to look at other ways to recruit new employees.
—Post all jobs internally. This is not as much a legal requirement as good employee relations, said Woods.
Waiting until you get to court to see if your records stand up? Here’s an easier way to find out: BLR’s January 20 audio conference, HR Recordkeeping: What to Keep, What to Toss, and How to Make Sure Your Records Protect You. Your satisfaction is assured. Can’t attend? Preorder the CD. Get more information.
—Advertise externally. Employers may want to target specialty publications such as professional websites or magazines. While employers should cast a wide net, they also need to be practical, says Woods. For, example, if the company won’t pay to relocate a new hire, focus advertising and recruiting efforts on the geographic region where the company is located.
—Avoid terms that invoke protected characteristics, such as gender and age. Woods related a story about a client who placed an advertisement with the following language: “Seeking recent college grad for management training position.” The EEOC took the position that advertising for a “recent” college graduate was age discrimination.
Rule 2. If You Don’t Need to Know, Don’t Ask
Simply put, employers must avoid questions that are not job-related, said Woods. These include asking about an applicant’s age, date of birth, gender, race, religion, national origin, citizenship, medical history, health status, and disability.
Recordkeeping on the back burner? You’re going to pay the price eventually. Find out how to do it right at BLR’s January 20 audio conference, HR Recordkeeping: What to Keep, What to Toss, and How to Make Sure Your Records Protect You. Can’t attend? Preorder the CD. Find out more.
Job relatedness means limiting pre-employment inquiries to qualifications and abilities necessary to perform the job, said Woods. Before asking an applicant a question, the employer should consider:
Is this information necessary to assess the applicant’s competence to perform the job?
Does the question screen out a disproportionate number of minorities, women, or people in other protected groups?
Are there alternative questions that would be more targeted to the job qualification?
Woods noted that an employer may legally ask an applicant if he or she is “lawfully able to be employed in the United States.” However, questions about where an applicant was born or if he or she is an American citizen are not permissible.
Inquiries about health status and medical conditions are legal landmines that generally should be avoided at the pre-hire stage, he said. However, Woods noted that drug and alcohol tests are specifically excluded from the definition of a medical examination under the statute and may be conducted at the pre-hire stage unless there is a state law that says otherwise.
Woods also cautioned employers that many states include sexual orientation as a protected class under antidiscrimination laws. In addition, many states restrict the use of arrest and conviction records in the hiring process.
In tomorrow’s Advisor, we’ll bring you numbers 3, 4, and 5 of Woods’ top hiring rules, and an introduction to an audio conference that tells you which hiring records to keep—and which to be sure to destroy.