When hiring new employees, an employer’s goal is to make the best match between an applicant’s skills and a job’s requirements. With a solid hiring process, an employer can obtain the information it needs to assess an applicant’s abilities, make smart hiring decisions, and avoid areas that can lead to hiring discrimination claims.
The following tips are aimed at helping employers hire successful employees while avoiding some of the legal pitfalls of the hiring process.
Start with the job description
A good job description accurately describes both the job duties and the qualifications needed to the job. In the hiring process, it can serve as a roadmap for screening resumes, developing interview questions, and matching up skills and experience with the job. Hiring should include evaluating a job’s current duties and updating the job description as first steps in the hiring process.
Find the candidates
Employers should cast a wide net when recruiting for an open position. Getting a diverse pool of candidates increases the chance of finding the best person for the job. Many employers use online job boards, social media, job fairs, and other resources to advertise jobs and meet potential candidates.
Industry groups and professional organizations are good resources when a job opening is in a specific field. It’s also a good idea to post jobs internally to give employees an opportunity to be considered for new jobs and promotions.
Avoid inquiries about criminal and credit history
Guidance issued by the EEOC recommends that employers remove criminal history questions from application forms and create a process to evaluate whether a criminal conviction is job related and consistent with business necessity. Several states and cities have "ban the box" requirements for application forms and restrict the use of arrest and conviction records by prospective employers.
Some prohibit employers from obtaining a criminal history until after a conditional offer of employment is made. It’s worth noting that the EEOC’s position on credit checks is that they "generally should be avoided because they tend to impact more adversely on minorities and females."
Do your homework
Before interviewing a candidate, employers should review the completed application form or resume for information that needs clarification during the interview. For example, if an applicant has had a lot of jobs in a short period of time, an employer will want to know why. In addition, being prepared for the interview shows respect for the applicant’s time and presents a positive image of your organization.
Ask job-related questions only
Limit inquiries to the qualifications and abilities necessary to perform the job - if you don’t need to know about it, don’t ask about it. The objective is to assess an applicant’s competence to perform the job, so it may be helpful to use the job description to develop questions.
While informal conversations with job candidates can help ease interview tension, interviewers should be careful not to stray into areas of potential hiring discrimination by asking about family, recreational activities, or club memberships. Keeping questions focused on the job and the applicant’s qualifications will go a long way in protecting an employer from liability.
Verify the information an applicant gives in the job application and during an interview. An employer can conduct a background investigation itself, or hire a third party to conduct the investigation. If the employer hires a third party, it must make sure to comply with the federal Fair Credit Reporting Act (FCRA). Criminal convictions should be evaluated based the nature of the crime, the time elapsed since the conviction, and the nature of the job in question.
If you use social media in the hiring process…
Designate a non-decision maker to conduct any searches. The individual should be properly trained to avoid improper access and to screen out information that cannot be lawfully considered in the decision-making process. The non-decision maker can provide "scrubbed" information (i.e., job-related only) to the decision maker.
Joan S. Farrell, J.D., is a Legal Editor for BLR’s human resources and employment law publications. Ms. Farrell has over 10 years’ combined experience in employment law and human resources management. As an in-house attorney for Citizens Communications Company, Ms. Farrell provided counseling on employment practices and represented the company in labor and employment matters. She later worked as a manager of Citizens’ Human Resources and Employment Law group. Ms. Farrell also represented management in employment law matters as an attorney with the national law firm of Brown Raysman Millstein Felder & Steiner LLP. Her experience includes representing management in administrative matters, discrimination and wrongful termination claims, as well as wage and hour disputes. Ms. Farrell received her law degree from Pace University School of Law.
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