By Catherine L. Moreton, J.D.
Managing Editor, HR.BLR.com

 

Hiring even one new employee means worrying about no less than 7 federal laws and probably a few at the state level as well. Stephen R. Woods, partner with the national law firm of Ogletree Deakins, offered 5 rules for avoiding these legal pitfalls during BLR's 2007 Employment Law Update.

Woods said that the laws that impact the hiring process include Title VII of the Civil Rights Act, federal affirmative action laws, the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Family & Medical Leave Act (FMLA), the National Labor Relations Act (NLRA), and a number of related state and local laws and ordinances.

So, how does an employer navigate this legal minefield? Woods offered the following 5 rules.

Rule 1: Cast a Wide Net

Many of the laws that impact recruiting and hiring are related to discrimination and prohibit employers from discriminating against applicants on the basis of gender, race, color, religion, national origin, age, disability, pregnancy, and union activity, said Woods. In addition, under affirmative action laws, employers must maintain certain records related to the hiring process to make sure the company is not discriminating either in its recruiting or hiring practices.

Casting a wide net means taking steps to make sure the company is recruiting a diverse pool of applicants from which to hire new employees. According to Woods, employers should:

• Avoid "word of mouth" advertising.
• Post all jobs internally.
• Advertise externally.
• Avoid terms that invoke protected characteristics, e.g., gender and age.
• Cast a wide net but make sure it isn't too wide.

Woods noted that relying on referrals from existing employees will likely result in an applicant pool that looks very much like the employees who made the referrals. Therefore, if the company wants to attract a more diverse applicant pool, it will need to look at other ways to recruit new employees.

The second tip is not as much a legal requirement as good employee relations, said Woods. He recommended that employers post all jobs internally giving employees an opportunity to be considered for new jobs and promotions.

Next, Woods suggested that employers always advertise open positions externally. By advertising jobs externally, employers are more likely to attract a diverse applicant pool. In addition, employers may want to target specialty publications such as professional web sites or magazines. According to Woods, while employers should cast a wide net, they also need to be practical. If the company would not pay to relocate someone for a job opening then the advertising and recruiting efforts should focus on the geographic region where the company is located, he said.

Finally, Woods emphasized that advertisements and other recruitment materials must avoid terms that invoke protected characteristics. He related a story about a client that 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. According to Woods, the company reworked the advertisement to remove the word "recent" and this eliminated the problem.

Rule 2: If You Don't Need to Know, Don't Ask

This rule is not new to those who have been involved in the hiring process for a long time. 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?

One area that causes employers some confusion relates to whether an applicant is authorized to work in the United States . 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.

Woods also noted that many employers collect information such as age and date of birth for purposes of conducting a background check. If an employer collects this information at the time an application is completed, said Woods, there should be a process in place for separating the background check authorization from the application itself so individuals making the hiring decision do not see the protected information.

Health status and inquiries about medical conditions are another area loaded with legal landmines, said Woods. Medical inquiries and examinations are regulated under the ADA and generally, should be avoided at the pre-hire stage. 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.

With very few exceptions, said Woods, questions about gender, marital status, height and weight, and the dates when an applicant graduated from high school should be avoided. Questions about marital status or plans for starting a family could give rise to a claim of gender discrimination. Likewise, height and weight restrictions could have an adverse impact on applicants of one gender versus the other, so they are only permissible if the employer can show the restriction is a bona fide occupation qualification (BFOQ). According to Woods, there are very few legitimate BFOQs.

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.

Rule 3: Use Your Application Form to Help Create a Defense Against Potential Claims

According to Woods, an employer's first and best, but often overlooked, opportunity to avoid lawsuits related to hiring is the employment application itself. Employers should have a well-written application form and make sure that every applicant considered for a job completes the form (even the CEO and other managers), said Woods.

The application form should include the following information, which can help an employer avoid a lawsuit:

• EEO statement
• Statement signed by the applicant that all information provided on the application is complete and accurate, and that false, misleading, or incomplete information could lead to a decision not to hire or be grounds for termination if an applicant has already been hired
• At-will employment statement
• Authorization for pre-employment testing
• Authorization for background investigation and reference check

Woods also suggested that employers consider adding a statement to the application saying it will remain active and valid for a specific period of time, such as 60 days or until the position is filled. This prevents applicants from coming back a year later and claiming they should be considered for a current job opening. However, Woods cautioned that if the company adopts this policy, it must make sure it is consistent in implementation.

Rule 4: Use Job Interviews to Get All (the Rest of) the Information You Need to Make a Decision

Once the applicant has completed the application form, the next step is the interview. In general, the interviewer should review the application form to determine if it was filled out completely. This is also a good time to look for red flags, said Woods, such as gaps in employment, job hopping, reasons for leaving, names of supervisors, etc.

Rule 5: Check It Out

Finally, Woods admonished employers to check it out and not accept the application or the interview information at face value. The legal reason for this advice, said Woods, is to avoid negligent hiring lawsuits.

Woods recommended both checking an applicant's references, and conducting a thorough background investigation. The employer can do the investigation itself, or hire a third party to conduct the investigation. However, if the employer hires a third party, it must make sure to comply with the federal Fair Credit Reporting Act (FCRA), said Woods.