Legal Considerations When Hiring

TOM GRESHAM

The job market is a highly competitive one for employers, increasing the pressure to excel in the hiring process and secure the best possible candidates for open positions. In the face of that pressure, however, there is no room to cut corners. The hiring process is rife with legal challenges that employers must follow to ensure a fair process and to avoid potentially pricey claims.

Dan Ragan, senior vice president with Seay Management Consultants, said the overriding legal concern for employers in the hiring process is Title VII of the Civil Rights Act of 1964, the Discrimination in Employment Act and the Americans with Disabilities Act, which together provide protections to people from discrimination for a range of reasons, such as race, religion, sex, national origin, age and disability, among others. Consistency and fairness should be the emphasis with all new hires, said Ragan, who has represented clients before the Equal Employment Opportunity Commission more than 400 times.

No matter your field or business, Allison Allen, BCE, executive director of QualityPro at the National Pest Management Association (NPMA), said consistency is key.

"It’s so important to use the exact same process with every individual," Allen said. "If someone comes back with an accusation of unfair practices, the burden of proof is on the employer. Much of your argument will erode away as soon as it can be demonstrated that you treated one person differently than another."

To that end, documenting your hiring process step-by-step for every job applicant is an essential rule for employers to live by.

"It’s important to emphasize a consistent documented process," said Chad Weikel, director of workforce development for NPMA. "Once you have that, it really protects you as an employer when something comes up because you can point back to the process to offer proof that ‘this is how we did things.’"

Postings and Applications

In advertising an open position, Ragan said it is critical not to use any language that excludes applicants for reasons other than their qualifications. For example, avoid using language that could be construed as gender-specific or that suggests a position is unavailable to an older worker, such as suggesting the ideal candidate will be new to a field. "You want to be very careful that you’re not screening out workers with that kind of language," Ragan said. "Be cautious with your wording."

"Job postings are an area where companies can go wrong without intending to," Allen said. "They mean well, but they go wrong because there is some unconscious bias built into the language that they use in a job posting so that the posting in and of itself only attracts a subset of people. Besides the legal concerns, employers should want to attract as many qualified applicants as possible, so it is good to review job postings with this in mind."

Similarly, the job application has components that could get an employer into "legal hot water" despite the best intentions. For instance, the Equal Employment Opportunity Commission statement at the top of an employment location will vary by state—some states require that you list more protected classes than the federal minimum, and those lists can change from year to year, Allen said. QualityPro recommends that companies review their standard application with an HR expert annually. Seay Management Consultants offers NPMA members some free advice and a discount on their services.

"There are lots of aspects to your employment application that you need to get right," Allen said. "That’s true regardless of whether it’s a paper application or an online process."

Interviewing

The interview process is marked with many potential pitfalls. Put resources into training the people who will be conducting the interviews, Allen said.

"There are good interview questions and there are bad interview questions," Allen said. "The line isn’t always clear to those who haven’t been trained in interviewing. A seemingly innocent question can get you in hot water."

For instance, apparently trivial small talk that accompanies an interview, perhaps before the formal questions begin, can suggest bias in a way that the employers would not otherwise exhibit, such as asking a female applicant about how many children she has or asking a candidate what church they attend.

"There are so many questions that just naturally come to us out of our own curiosity about a person that could lead you to discover something about that person that is part of their protected class status. Interviewers shouldn’t be leading those lines of questioning," Allen said.

Ragan said employers should stick with job-related questions in the interview process, focusing on the essential functions as noted in the job function and the candidate’s ability to perform them with or without accommodation.

Allen said employers should take diligent notes during the interview, and keep the notes after the interview in case they need to defend against claims about the conversation that are inaccurate. "You want to document exactly how the interview went," Allen said.

References, Checks and Accommodations

Allen said reference checks have become less and less helpful to employers in recent years as references increasingly ignore requests or provide only the most basic employment information. Many of them, Allen said, are wary of being pulled into any legal challenges if a candidate feels they were unfairly treated in the hiring process. Despite those limitations, Allen said employers should still make attempting to check at least three references a standard part of their due diligence when hiring because of the potential value of the process. That said, if you are asked to provide a reference, simply confirm dates of employment.

Allen said a criminal background check should happen after a conditional job offer has been made. Allen said if the hire will be driving a company vehicle, it makes sense to review their driving record then, too. Similarly, she said a drug screening is relevant for "most service-related positions within our industry."

After the conditional offer is also the time when a determination is made whether the employer needs to make any reasonable accommodations for the candidate based on any disabilities or whether those requirements would place an undue burden on the employer. Once those final steps are hurdled, a final offer can be made to the applicant.

An Evolving Field

Hiring remains an evolving field. In recent years, for instance, many employers have placed a greater emphasis on diversity and inclusion in the workforce. Allen said it is important to work with an expert to review your employee handbook with an eye on diversity and inclusion to ensure "there isn’t anything in your policies that would exclude someone."

Ragan said employers have latitude to emphasize diversity and be proactive in pursuit of it.

"Statistically, diversity is good for business, and we know that workforces that are more diverse are more productive and more open to creative thought," Ragan said.

In an even more recent development, COVID-19 has introduced fresh challenges to the hiring process, particularly as it relates to whether an applicant has opted to get vaccinated. Ragan said the role of vaccine statuses in the workforce—and what can be asked or enforced—has been a rapidly shifting area that can vary from state to state and industry to industry.

"It changes so quickly and it depends so much on state laws and each industry that it’s really important to consult with an expert to make sure you understand how it affects you," Ragan said.

In general, Allen said, seeking out an expert to make sure your processes are above board is good advice for everyone.

"So much of this is state specific, but a great first step is to review the QualityPro standards that relate to hiring," Allen said. "The QualityPro process will get your company most of the way to developing a legal and consistent process."