Hiring even one new employee invokes no fewer than seven federal laws and several state laws as well, says attorney Stephen R. Woods. How does an employer navigate this legal minefield? Woods, a shareholder with the national law firm of Ogletree Deakins, offered two tips at a recent BLR Employment Law Update conference in Las Vegas.
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.
- 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.
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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.
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. Also, inquiries about health status and medical conditions are legal landmines that generally should be avoided at the pre-hire stage, he said.