When practicing business in the United States, employment law starts before the your hire your very first new employee. This means that it is quintessential that employers abide by all rules and regulations during the recruitment, hiring and onboarding process. Failure to do so may result in serious legal penalties. That is why it is important to understand the proper and lawful way of conducting the employment process, even before the first interview.
When interviewing and hiring potential employees for a position at your company is vital that you choose your wording very carefully. Avoid promises of any kind unless you can guarantee them. Try your best not to give promises of a secure job, or promotions as this is not insurable. It is permissible to speak well of the job to bolster its attractiveness, but do not make any promises that you, or the company may not be able to keep. The goal is to shed a positive light on the position, but not to oversell it.
When interviewing, limit any personal questions as to insure you do not develop a connection with the job candidate. Doing so may reveal information or personal details that may be inappropriate to reveal during the consideration for the position. It is very important to stay entirely nonbiased during the interview process, failing to do so can land your business in very hot water. You should avoid commenting on things that bring you closer to them until the hiring process is complete. For example, remarking that you went to the same college and asking when they attended to determine if you both attended at the same time may elicit information about the candidate’s age, or making compliments on their jewelry or accessories, which may reveal information about the candidate’s religion or national origin. The best habit is to focus on the job requirements and the candidate’s qualifications and previous experience.
Also be considerate of your state’s criminal background laws, in some states it is illegal to allow a candidate’s criminal background to impact your ultimate hiring decision. Consult with your local laws and offer candidates an optional criminal history check. Also be sure to consider certain types of criminal convictions, such as convictions that occurred several years ago, did not involve serious crimes, or were not relevant to the job.
Employers using a third-party provider, or consumer reporting agency, must comply with the Fair Credit Reporting Act (FCRA) and any state or local equivalent. It may also be a good decision to review the candidate’s payment history in the case of this.
Also be sure to check applicable driving record laws in your area after considering the position and whether it requires driving. Also check with your local laws to ensure whether it is lawful to obtain a driving record before hiring a candidate in your area.
Ensure that you obey any military background guidelines in your state. Asking about a candidate’s military service or any positions related is generally permissible if their experience from the military is relevant to the position the candidate is applying for.
Avoid asking questions that may reveal age information. Avoid asking questions involving the candidate’s college and their dates of attendance or graduation. Avoid comments of the candidates supposed overqualification for the position. Also avoid questions asking how the candidate would handle a work environment of younger people or a younger boss.
Avoid questions pertaining to a candidate’s disabilities. Ask about a candidate’s ability to perform specific job functions, not about their inability to perform those functions, whether they have a disability, or the nature or severity of a disability.
Absolutely steer clear of questions pertaining to religion. Use care when asking questions that may reveal information about a candidate’s religion, such as their ability to work on weekends or their willingness to adhere to grooming and dress codes. Ensure the questions are reasonably related to business necessity and job requirements. Instead of inquiring about their willingness to abide by workplace dress code, instead inform them of the dress code and specify whether certain religious garments are allowed. Do not ask any questions or leave the candidate any opportunities to reveal details about their religious identity.
Avoid questioning about the candidate’s national origin. Avoid asking about a candidate’s birthplace (or that of their family members) or whether the candidate is a citizen. For example, do not ask about a candidate’s accent. However, it is permissible to ask if the candidate is legally permitted to work in the US. It is also acceptable to inquire if the candidate requires sponsorship for a work permit to work legally in the US. You may also about the candidate’s fluency in a particular language if required for the position but not, for example, how or where they learned to speak or read the language.
Avoid asking questions pertaining to lawful outside information. Asking questions about a candidate’s outside life is rarely relevant to the position or interview and can reveal sensitive details of a candidates identity, such as their religion or and disabilities they may have. It may also violate state or local law prohibiting employers from considering lawful outside activities absent a conflict with the company’s business interest.
All employers must comply with their local wage and salary history laws. This specifies that it is prohibited that an employer require a candidate to disclose their previous salary or wages at previous working positions. If the company decides not to hire a candidate who was asked to disclose this information, the candidate could claim that they were discriminated against due to their financial status. Although most salary laws do allow employers and candidates to discuss salary expectations including, in some cases, deferred compensation a candidate might forfeit if they take the job. In some jurisdictions, they allow employers to request a candidate’s salary history after making an offer of employment that includes the amount of compensation or after a candidate volunteers their salary history information without prompting from the employer.
It is important to abide strictly by all the employer’s state anti-discrimination laws. Some state jurisdictional laws state you must not refuse to interview an applicant or hire a candidate based on their status as unemployed. They must also not list ‘currently employed’ as a job requirement. Interviewers should avoid asking about gaps in employment but are generally free to ask about the circumstances surrounding employment separation. For example, do not ask a candidate what they were (or have been) doing during periods of unemployment. Instead, ask why the candidate left a particular job or employer.
If the candidate is a minor as defined by federal, state, or local law, it is required that the employer request all the mandated and required documentation from the individual.
Be sure to confirm all relevant information given out by the candidate to ensure its validity. This can include information regarding education and previous employment. It is important to keep in mind that most employers limit the information in which they give out regarding current and past employees. Also take the time to validate any licensures and certifications.
Be sure to disclose interview guidelines to any employees who may meet the candidate as these guidelines do not just apply to the interviewer. This is important for all employees to know so that the company does not run the risk of a discrimination suet or any other legal action that may be taken if these regulations are breached.
As demonstrated, it is vital that one abide by all the previously stated restrictions and guidelines to avoid any legal penalties due to discrimination laws.