Numerous federal employment laws exist to guide employers through the hiring process. In general, these laws prohibit acts of discrimination when making employment decisions. Employers cannot make hiring decisions on the basis of race, color, religion, gender, age, ethnic/national origin, disability or veteran status. Such factors covered in these laws are considered immutable characteristics and are part of protected classes.
The main point of these employment discrimination laws is to make treatment of applicants illegal when decisions or activities are based solely on something applicants cannot change. For instance, a person cannot change his or her age or national origin; therefore, these characteristics should not be a condition for being hired.
Acceptable Selection Procedures
Acceptable selection procedures may include a single measure, or a combination of measures, to be used for making employment decisions. These procedures should also be free from using biased determinations. Typical selection procedures generally acceptable include:
Use of these selection procedures should not disproportionately discriminate or exclude groups within a protected class. Absent a disparate impact on protected groups, an employer can use its discretion on these selection procedures.
An exception for some employers is when certain criteria are job-related and necessary for business purposes. Defined as Bona Fide Occupational Qualifications, employers cannot simply claim necessity without proving the discriminatory act is necessary for an essential job duty.
New Hire Checklist
Typically, an employer must complete a few steps before a new hire can begin working for the company. These steps are necessary to ensure an employee is hired through legal channels. Each relates to employer obligations for having employees.
Every employer operating as a corporation or partnership should have a federal employment identification number. This is free and obtained from the IRS by all businesses who hire one or more employees. The EIN is used for tax purposes, financial data and to apply for business licenses.
It is also necessary for employers to register with the state employment office. Unemployment compensation and state taxes must be paid in addition to federal tax obligations. States also require employers to purchase workers compensation insurance to cover any work-related injuries.
Generally, the legal hiring process includes avoiding the pitfalls that may occur before an offer is extended. One prominent area of contention is hiring applicants who are not authorized to work in the U.S. While employers may ask applicants if they are legally eligible to work in the United States, they cannot ask where applicants were born. Direct questions about American citizenship are prohibited.
As written, laws governing hiring practices presume that questions on an application or asked during an interview are part of hiring decisions. Therefore, it is crucial for employers to limit interview topics strictly to what is needed for evaluating applicants’ qualifications.
Proper techniques for conducting legal interviews include:
Often, employers overlook the importance of following the law until they are served with court documents. A review of current application forms between human resources personnel and the company attorney may uncover some hidden issues. The review will highlight whether current practices are objective and do not ask inappropriate questions. Common recruiting mistakes can lead to costly litigation if a job applicant within a protected class claims discrimination.
To minimize exposure, employers may also consider having applicants grant approval for background checks. These must conform to provisions in the Fair Credit Reporting Act, which regulates the collection individual credit information.
Job applications and personal interviews are the tools most frequently used by employers to select qualified applicants for employment. Employers should actively think critically about current procedures and make sure every staff member involved understands how to conduct a legal interview.
Attract Qualified Applicants with Diverse Backgrounds
In many cases, employers can use a variety of sources to find great workers. Attracting qualified applicants with diverse backgrounds helps to ensure that employers are not discriminating against anyone within a protected class. Recruiting at a broad range of postsecondary schools with a diverse student population is resourceful. Partnering with organizations that have diverse memberships is another way to reach out to different applicants.
Intentional misrepresentations from employers that are used to convince an applicant to accept a job offer is strictly prohibited. Applicants may have legal rights to file a fraud claim based on such employer statements. Other statements to avoid include promises that stock options will be worth a specific amount, employees will receive pay increases or that working for the company is a guaranteed job for life. All can be considered an implied contract between the employer and job applicant. Failing to keep the promises could hold the employer responsible for any damages an applicant suffers.
An example of this is if the employee relies on those statements and leaves a secure position with an existing employer. When the job offer does not materialize, the applicant is out of work. The applicant quit the job because they relied on the employer’s word.
Another claim based on fraudulent employer statements is wrongful termination. If an employer makes certain statements during the hiring process regarding certain business practices that prove false, an applicant could file a claim. To illustrate, an employer may promise an applicant that the company does not fire employees during a six-month probation period. The applicant accepts a job offer and is terminated four months later. A breach of contract claim could be appropriate since the employer ended the relationship before the six month period was over.
Hiring procedures for employers in the United States are governed by various statutes that protect workers from employment discrimination. Dealing with unfair hiring practices is not something an individual should bear alone while looking for work. These laws are meant to protect applicants and to help guide employers on the best hiring practices.
Some employers might view these laws an opposition to how they should run their business. However, the reality is that these laws can also serve as protection for employers. When employers develop a solid recruitment strategy, review hiring documents and practices, and train interviewers on appropriate interview behaviors, applicants cannot successfully make false discrimination claims.
Establishing a standardized selection procedure helps to ensure that all applicants are treated fairly. Knowing the smart way to hire is recruitment 101 for employers. Following a legal hiring process can lead to effective and efficient hiring of a strong workforce.