Hiring guidelines

When hiring a worker, there are things you need to keep in mind to make sure your employment process is fair and legal. Employee lawsuits for unlawful employment practices threaten the financial stability of both large and small businesses. But there are things you can do to help avoid issues.

To reduce your exposure to employment practices liability, we’ll take a look at risks and recommendations related to employment advertising, applications, and candidate testing and interviewing.

Recruiting a new employee begins with a job posting. But you need to be aware that some statements made in advertising material may be considered discriminatory. A few examples to avoid could include:

• “Energetic” could be interpreted as seeking a young candidate

• Implying a contractual guarantee such as “permanent employment” or “lifetime opportunity” can be misleading if the person is ever fired or laid-off

• Requiring the “ability to lift 30 pounds” when there is no actual lifting in the job being posted or advertised

• Making statements that could imply a guarantee of compensation, such as “$50,000 your first year.”

To avoid problems, start with a review of your company's entire recruiting and hiring process with legal counsel. If changes are needed, no recruiting or hiring should be done until everything is corrected.

When you advertise the position, keep the qualifications limited to baseline skills. Be sure to have a job description on file to support requiring any necessary skills or qualifications.

Also, you’ll need to eliminate any wording that could be interpreted as discriminatory—that includes references to gender, age, religion, national origin, race, disability, sexual orientation, and other significant protected characteristics.

You and your lawyer should review your company's job applications to make sure all questions are related to the open position. As before, if there are questions, don’t do any recruiting or hiring until it’s all resolved. If the application was developed internally, you should consider replacing it with one from a professional supplier of employment-related documents.

You should include the following in your application forms:

• A statement that misrepresentation or omission on the application will lead to termination

• Authorization from the applicant to check references and conduct appropriate background checks

• A statement of employment-at-will

• A signature by the applicant confirming they’ve read, understood, and accurately completed the application

Also, you should require all new applicants to complete and sign the job application and investigate any omissions on it.

After you receive a completed application, you can begin the screening process:

• Consult with a qualified attorney to ensure background and identity checking applicants is permitted where you do business

• Check the applicant's references from prior employers and personal references

• Have the applicant’s motor vehicle record checked if they’ll be driving as part of their job duties to make sure they meet your standards

• Run a credit check on applicants who will have access to cash or finances. Review this process with a qualified attorney to make sure you’re following all requirements of the Fair Credit Reporting Act.

Specialized skills, knowledge, or physical ability might be required to do a job. That means you need to make sure any testing you do is both valid and work related. Here are some things to avoid:

• Testing an applicant’s ability to lift 30 pounds when the position doesn’t require that, or testing a person with a disability when the need to lift could be engineered out of the task

• Administering a skills or knowledge test for which your company cannot prove or support a correlation between the test results and success on the job

If you currently do testing, you’ll need to determine if it’s necessary and worth the potential liability. If your historical results don’t pass this consideration, you should redesign the testing. Here are some items you should consider:

• If your testing is developed and administered by an outside agency or service, require the vendor to hold your company harmless and indemnify you for any discrimination claims based on the testing and any damages that may result.

• Consult with a qualified attorney to determine if drug and alcohol testing can be an acceptable part of your hiring process. These guidelines should be properly documented and administered consistently to comply with applicable state and federal laws.

• Give skills tests on a pre-offer basis. This also helps narrow the pool of candidates to those most qualified before interviewing and extending an offer.

• Do any medical testing of physical capacities on a post-offer basis.

• Keep a record of historical testing results to periodically evaluate and confirm a continued correlation between your company’s testing and on-the-job success.

When it’s time for you to interview a candidate, there are other guidelines to keep in mind. Stay away from questions that could be considered discriminatory, such as:

• “How many children do you have?”

• “Are you married?”

• Asking about general physical conditions or disabilities that are not job-related and can’t be supported as a bona fide occupational qualification.

You should periodically review your company’s interview questions to make sure you’re staying within the guidelines and that the questions are relevant to the job. And don’t forget to work with your management staff to teach good interviewing techniques that minimize liability while getting the information you need to make the right hire.

Sometimes an employee doesn’t work out. If the time comes where you must terminate a worker, here are some things you should consider:

• Be sure your supervisors clearly document all consultations with an employee about their performance issues.

• Never terminate an employee without first reviewing the performance documentation.

• If you question whether there’s enough documentation, talk with an employment law attorney before acting.

By taking these steps, you’ll be better able to ensure that you’re following the best hiring practices and getting a qualified employee who’ll help your company succeed into the future.