Hiring Your Team: Avoiding Legal Pitfalls In Identifying And Interviewing Potential Team Members

Effective hiring processes and procedures will help you to avoid many costly headaches later on. Here are some tips on avoiding legal pitfalls in the hiring process.

1. Understand What Laws Apply

Various employment laws govern the hiring process depending on the size of your organization. Federal, state and local laws make it illegal to discriminate in hiring on the basis of a protected class, which generally includes race, color, religion, sex (including gender identity, sexual orientation and pregnancy), national origin, age (40 or older), disability or genetic information. Specifically, an employer violates the law when it: (a) fails to hire an applicant because of the applicant’s protected class; or (b) uses facially neutral criteria that has an adverse impact on the hiring of applicants in a protected class.

Regardless of your size, it is best practice to comply with the applicable federal, state and local laws in the hiring process to minimize the potential for discrimination claims in the future.

The federal Equal Employment Opportunity Commission (EEOC) offers an online summary of Prohibited Employment Policies/Practices.

2. Define the Job

As an employer, you must first define the position that you seek to fill. Many employers define a position using a position description or a job posting. First, you must identify the essential functions of the position, meaning those functions that are critical to the position and are the primary reasons that the position exists. Essential functions generally include the required job duties and responsibilities, shift requirements, physical demands, required certifications and licenses, required education, required prior experience and other necessary skills.

Additionally, you will want identify marginal or non-essential functions and skills that, while not required, would be ideal for the individual to have.

In any position description or job posting, make clear that you are an equal opportunity employer and will consider applicants without regard to race, color, religion, sex, national origin, age, disability, genetic information or any other status protected by law.

As you proceed through the hiring process, document any adjustments made to the functions and requirements of the position. Maintain your job descriptions and job postings (including revisions) for a period of at least two years or longer if required by applicable law. The EEOC provides informal guidance on position descriptions in a discussion letter that can be found online.

3. Recruit Qualified Candidates

Once you have defined the position, you will need to inform the public about the job opening. We recommend using multiple recruiting methods so that you reach a broad and diverse audience, such as word of mouth, referrals, job services or recruiters, job postings and advertisements (radio, newspaper, magazines and trade journals). When informing the public about the job opening, you should communicate the functions and requirements of the position, how to apply (i.e. in person, via mail or online) and what to submit (i.e. resume, application and/or cover letter).

4. Screen Applicants for Interviews

Upon receiving the application, resume and/or cover letter, you will need to screen the materials to ensure that the applicant meets all of the job requirements before contacting the applicant to schedule an interview. If, based on the materials submitted, the applicant does not meet the job requirements, the applicant should be rejected.

You will also need to determine how you want to handle incomplete applications: automatically reject the applicant or notify the applicant and allow the applicant to complete any missing information. Regardless of which option you choose, you will want to treat incomplete applications consistently.

Be aware that asking applicants to disclose criminal convictions or screening applicants for criminal convictions may violate applicable employment laws. For example, Philadelphia has enacted the Criminal Records Screening Standards Ordinance, which restricts an employer’s ability to inquire about an applicant’s criminal history in job applications. Thus, it is important to know whether or not you are in a jurisdiction that prohibits questions on applications about criminal convictions. Furthermore, while not legally binding, the EEOC has endorsed removing inquiries regarding convictions from job applications as a best practice. The EEOC offers guidance in this regard.

5. Prepare to Interview

Before scheduling an interview, you should decide who within your organization will conduct the interviews. To the extent possible, the same interviewers should conduct all of the interviews for the applicable position. Once the interviewers have been identified, ensure that the interviewers are familiar with the employment laws that govern the hiring process, the applicable job duties, the hiring process, and company policies and procedures so that they can accurately answer questions.

You will then want to develop a standardized list of job-related interview questions. Such questions should focus on the position requirements and relevant education, experience and/or training. For example, the following are appropriate questions for an interview:

What did you do at your last job?
Why did you leave?
What have you done since your last job?
What licenses or certifications do you hold?
Were you ever disciplined by any employer?
Why are you interested in this job?
Why should we hire you?
Are you over 18?
Can you perform the essential functions of the position with or without an accommodation?
Are you subject to any contractual obligations that would interfere with your ability to perform the essential functions of this position?
Can you work certain hours or shifts?

6. The Interview

A face-to-face interview is the most important part of the hiring process, but it can also be the most dangerous from an employer perspective. This is because it is illegal to ask about certain topics in an interview. While local laws will vary, federal and state employment laws generally prohibit an employer from eliciting information about an applicant’s protected status, such as the applicant’s race, color, sex, age, marital status, religion, veteran status, sexual orientation, national orientation, workers’ compensation history and medical conditions. The following are examples of questions that you cannot ask in an interview:

How old are you?
What is your date of birth?
What year did you graduate from high school?
What country are you from?
Do you have kids?
Do you plan on having kids?
Do you have any physical limitations or medical conditions?
Have you ever filed a workers’ compensation claim?
What religion do you practice?
Have you ever been a member of a union?

Additional guidance from the EEOC on lawful and unlawful inquiries can be found here.

Despite your best efforts to avoid unlawful inquiries, some applicants will volunteer information that you would prefer not to know. If this happens during the interview, do not expound on it or make note of the information in your evaluation or notes.

Avoid making notes on the employment application or resume. Instead, take notes on a separate sheet of paper. Do not make any notes that you would not want to share outside of your organization.

At the conclusion of the interview, inform the applicant of any post-offer requirements, such as drug testing or medical examinations and inform the applicant when he or she should expect to hear from you regarding the position.

7. Final Selection

Once the interviews have been completed, the interviewers and other relevant employer representatives should meet to discuss the applicants and make a selection based on the applicant’s qualifications for the position. As discussed above, selection decisions must be made without regard to any protected class or any other factor that is not related to the applicant’s ability to perform the job. Avoid selecting a candidate based purely on subjective criteria, such as demeanor, attitude, poise or personality; rather, make sure the final decision can be explained in an objective manner.

8. Recordkeeping

You are required to keep applicant information for at least one year. If you have a destruction policy for applicant information, you should follow it consistently. In addition, you should keep track of applicant flow and outcomes for each position opening. Specifically, you should keep a record of: (a) applicant information (i.e. applications, resumes and/or cover letters) received and when such information was received; (b) interviews, including who was interviewed, the interviewers and when such interview(s) took place; and (c) all offers extended and who was ultimately hired for the position.

Stay tuned for topics related to hiring your team, including offer letters and employment contracts, protecting your information and intellectual property, personnel policies and employee benefits.