LEGAL ISSUES

Legal Hiring Practices FAQ

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A big part of your job as an employer is finding and hiring new people for your company. From composing job advertisements to making an offer of employment to an individual, you'll have to abide by a number of laws. These answers help you find the best employees while avoiding legal trouble such as discrimination or invasion of privacy claims.

How can I write advertisements that will attract the best pool of potential employees without getting in legal hot water?

Many small employers get tripped up when summarizing a job in an advertisement. Nuances in an ad can be used as evidence of discrimination against applicants of a particular gender, age, or marital status.

There are a number of pitfalls to avoid in job ads:

Don't Use Use
Salesman Salesperson
College Student Part-Time Worker
Handyman General Repair Person
Gal Friday Office Manager
Married Couple Two-Person Job
Counter Girl Retail Clerk
Waiter Wait Staff
Young Energetic

Also, requiring a high school or college degree may be discriminatory in some job categories. You can avoid problems by stating that an applicant must have a "degree or equivalent experience."

Probably the best way to write an ad that meets legal requirements is to stick to the job skills needed and the basic responsibilities. Some examples:

  • "50-unit apartment complex seeks experienced manager with general maintenance skills."
  • "Midsize manufacturing company has opening for accountant with tax experience to oversee interstate accounts."
  • "Cook trainee position available in new vegetarian restaurant. Flexible hours."

Help wanted ads placed by federal contractors must state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. Ads often express this with the phrase " an equal opportunity employer." To show your intent to be fair, you may want to include this phrase in your ad even if you're not a federal contractor.

Any tips on how to conduct an interview without inviting legal trouble?

Good preparation is your best ally. Before you begin to interview applicants for a job opening, write down a set of questions focusing on the job duties and the applicant's skills and experience. For example:

  • "Tell me about your experience in running a mailroom."
  • "How much experience did you have in making cold calls on your last job?"
  • "Explain how you typically go about organizing your workday."
  • "Have any of your jobs required strong leadership skills?"

By writing down the questions and sticking to the same format at all interviews for the position, you reduce the risk that a rejected applicant will later complain about unequal treatment. It's also smart to summarize the applicant's answers for your files -- but don't get so involved in documenting the interview that you forget to listen closely to the applicant. And don't be so locked in to your list of questions that you don't follow up on something significant that an applicant has said or don't try to pin down an ambiguous or evasive response.

To break the ice, you might give the applicant some information about the job -- the duties, hours, pay range, benefits, and career opportunities. Questions about the applicant's work history and experience that may be relevant to the job opening are always appropriate. But don't encourage the applicant to divulge the trade secrets of a present or former employer -- especially a competitor. That can lead to a lawsuit. And be cautious about an applicant who volunteers such information or promises to bring secrets to the new position; such an applicant will probably play fast and loose with your own company's secrets, given the chance.

For more information, see "Legal and Illegal Preemployment Inquiries."

I've heard horror stories about employers who get sued for discrimination by employees and even by people they've interviewed but decided not to hire. What's the deal?

Federal and state laws prohibit you from discriminating against an employee or applicant because of race, color, gender, religious beliefs, national origin, physical disability, or age if the person is at least 40 years old. Also, many states and cities have laws prohibiting employment discrimination based on marital status or sexual orientation.

A particular form of discrimination becomes illegal when Congress, a state legislature, or a city council decides that a characteristic -- race, for example -- bears no legitimate relationship to employment decisions. As an employer, you must be prepared to show that your hiring and promotion decisions have been based on objective criteria and that the more qualified applicant has always succeeded.

Still, when hiring, you can exercise a wide range of discretion based on business considerations. You remain free to hire, promote, discipline, and fire employees and to set their duties and salaries based on their skills, experience, performance, and reliability -- factors that are logically tied to valid business purposes.

The law also prohibits employer practices that seem neutral but may have a disproportionate impact on a particular group of people. Again, a policy is legal only if there's a valid business reason for its existence. For example, refusing to hire people who don't meet a minimum height and weight is permissible if it's clearly related to the physical demands of the particular job -- felling and hauling huge trees, for instance. But applying such a requirement to exclude applicants for a job as a cook or receptionist wouldn't pass legal muster.

How can I check out a prospective employee without violating his or her right to privacy?

As an employer, you likely believe that the more information you have about job applicants, the better your hiring decisions will be. But make sure any information you seek will actually be helpful to you. It's often a waste of time and effort to acquire and review transcripts and credit reports, although occasionally they're useful. If you're hiring a bookkeeper, for example, previous job experience is much more important than the grades the applicant received in a community college bookkeeping program 10 years ago. On the other hand, if the applicant is fresh out of school and has never held a bookkeeping job, a transcript may yield some insights. Similarly, if you're hiring a switchboard operator, information on a credit report would be irrelevant. But if you're filling a job for a bar manager who will be handling large cash receipts, you might want to see a credit report to learn if the applicant is in financial trouble. Finally, it's usually not wise to resort to screening applicants through personality tests; laws and court rulings restrict your right to use them in most states.

Can I use drug or alcohol tests to screen job applicants?

With drug and alcohol use on the rise -- along with increased pressure to make solid hiring decisions -- many employers are resorting to drug and blood tests in an attempt to weed out problem employees before they're hired.

The legal rules on whether this testing is permissible are a bit complicated. What may be most mystifying is what you can do with the information you discover. For example, after you've made a conditional offer of employment and as part of a preemployment medical screening, you may discover that a job applicant had a drug problem in the past. The Americans with Disabilities Act (ADA) prohibits you from discriminating against people because of past drug problems. This includes people who no longer use drugs illegally and are receiving treatment for drug addiction or who have successfully recovered from an addiction.

To make sure that drug use isn't recurring, however, you may request evidence that a person is participating in a drug rehab program. You may also ask for the results of a drug test. You can refuse to hire someone with a history of alcoholism or illegal drug use if you can show that the person poses a direct threat to health or safety. You must show that there's a high probability that the person will return to the illegal drug use or alcohol abuse, and a high probability of substantial harm to the person or others -- harm that you can't reduce or eliminate through what the ADA deems a "reasonable accommodation," such as changing the employee's job duties to eliminate working with toxic chemicals or heavy machinery.

Copyright © 2000 Nolo.com Inc.

Last updated: May 12, 2000




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