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The Legal Traps of Recruiting, Hiring

Among the remedies: Know which laws apply, and then ensure that your recruiting methods comply with these laws.

February 12, 2014
Related Topics: Review, Recruiting, The Latest, Legal, Recruitment
KEYWORDS Legal / recruitment / RPO
Recruitment sidebar Feb 2014

What should you do when you have to fill a key position with the right person for the job and had to do it by yesterday? First, take a deep breath, count to 10, and consider these tips to avoid recruiting and hiring traps:

·      Know which laws apply. Of course, you know about the federal anti-discrimination laws implicated in recruiting and hiring: Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Equal Pay Act, the last of which prohibits wage discrimination between men and women holding substantially equal jobs. But you should also keep in mind the more recent Genetic Information Nondiscrimination Act of 2008, which prohibits discrimination based on genetic information and the Uniformed Services Employment and Reemployment Rights Act, which prohibits discrimination based on military service or obligation as well as state and local laws that prohibit discrimination because of mental status or sexual preference. Also, consider whether the position to be filled is an administrative, executive or professional position that is exempt from overtime rules.

·      Ensure that your recruiting methods comply with these laws. With those federal, state, and local laws in mind, you’re ready to navigate the minefield and begin finding the right new employee. The first step in any recruitment is advertising. Employers should avoid word-of-mouth recruiting or publications that are tailored to specific groups, which can inadvertently narrow the applicant pool and exclude minorities or women. Instead, employers should advertise broadly, including, but not limited to internal and external notice boards, a variety of outside publications, a recruitment agency and the Internet. 

·      Beware of pre-employment tests and research. Does the position require pre-employment testing? If so, you should closely review the U.S. Equal Employment Opportunity Commission’s guidance on this topic, as testing can be a fertile ground for lawsuits. Any written or physical pre-employment test used in hiring must be necessary and related to the job, and shouldn’t exclude a disproportionate part of a particular protected group. In addition, research indicates that between a third and a half of human resources managers use the Internet for background checks on candidates. However, what seems to be public information on LinkedIn or Facebook can be problematic, since you might learn an applicant’s age, religion, marital status or other information you would not ask for in an interview. Also, are you certain you located the right person? Consider carefully whether information you might obtain through the Internet will be accurate or is worth the risk of potential legal action.

·      Ensure interviews are objective and job-related. Now that you’ve narrowed the field, you are ready for the interviews. You should make sure that you have a clear selection criterion, have more than one interviewer for each applicant to promote fairness, and ask applicants only similar job-related questions. Of course, avoid questions regarding marital or family status, or any other personal topics or subjects unrelated to the applicant’s qualifications for the position. You should also keep in mind that any notes you take during the interview, including your Internet research or comments on a résumé, should be related to the applicant’s qualifications and should not document anything that could be considered discriminatory or disparaging.   

·      Determine if your organization is required to have an affirmative action plan.  Finally, if your company routinely receives work from the federal government, an affirmative action plan may be required for entering into a federal contract. For example, service and supply contractors with 50 or more employees and government contracts of $50,000 or more are required to develop and implement a written affirmative action program for each establishment where they can also set the goals. If this applies to your company, you should familiarize yourself with the requirements.

Heather A. Jackson and Cary E. Donham are shareholders and Richard Hu is an associate attorneu at Taft, Stettinius & Hollister in Chicago. To comment, email Follow Workforce on Twitter at @workforcenews.

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