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by Ugo Ukabam, Esq., Gray Plant Mooty, Minneapolis

Employers operate in an increasingly complex legal environment, made all the more difficult by the tough economy. Hiring has emerged as a particular trouble spot.

You need to hire and maintain a skilled and productive workforce. But you must watch out for legal liability that can surface in the process.

Employment advertisements

A help-wanted ad that directly or indirectly states a preference for applicants based on gender, age, or other protected characteristic is generally unlawful.

When you advertise for an opening, list only the necessary job-related skills and qualifications—for example, “must be able to lift 50 lbs.”—rather than assumptions about who can perform the functions of the position—such as “male furniture-mover wanted.”

There are exceptions to this general rule, e.g., when an employer has adopted a lawful affirmative action plan or the preferred characteristic is a bona fide occupational qualification (BFOQ) for the position being advertised. Age, for instance, may be a BFOQ for a part in a movie requiring a child actor. Gender may be a BFOQ for working in a women’s locker room.

Job description

Although no law requires employers to maintain job descriptions, it’s a good practice. Thorough descriptions help applicants understand the job’s requirements and discourage poorly suited applicants from applying.

Here are some tips for drafting job descriptions:

  • List the “essential functions” of the job—the fundamental job duties.
  • Identify the skills, knowledge and abilities required to perform the essential functions and any special requirements for the job.
  • Include a summary of nonessential functions that an employee may be asked to perform occasionally or intermittently.
  • Include descriptions of the work environment, equipment and expected work habits.
  • Include a disclaimer that the job description does not constitute an exhaustive list of responsibilities and that management may revise it at any time. 
  • Review and update descriptions as needed so they remain accurate.

Applications and interviews

Written job applications and face-to-face interviews help hiring managers gather applicant information and assess their qualifications. But asking for some kinds of applicant information may violate anti-discrimination laws. Stick to questions that assess a candidate’s skills, ability or qualifications.

Avoid questions that may trigger stereotypical assumptions about protected class status:

  • Marital status: Are you married? Is that your maiden name or your married name? 
  • Age: How old are you? When did you graduate from high school?
  • Disability: Do you have any disabilities that would impair your ability to work? How often were you out sick in your last job?
  • Religion: Which church or synagogue do you attend?  What religious holidays do you observe?
  • Gender/sex: Are you pregnant? What will you do with your children while you are at work?
  • National origin/race: Where were you born? 

Background checks

Federal and state laws limit employers’ ability to obtain background reports and demand pre-employment medical examinations. Under Minnesota law, an employer may not subject applicants to alcohol testing, and drug testing isn’t permitted without a written policy and certain procedures in place. 

Before checking an applicant’s references, notify the applicant in writing that you will do so, and obtain the applicant’s written consent to the reference checks.

When checking references, ask only for job-related information.

Offers and offer letters

Beware of inadvertently making promises you don’t intend to keep. Enthusiastic employers often make statements to applicants suggesting long-term or permanent employment, or indicating that, “you will always be treated fairly.” Those statements can easily become ammunition in later breach-of-contract lititgation.

Avoid making unintended promises, either verbally or in written communications such as offer letters, employment handbooks and personnel policies. That way, you will retain flexibility to respond to personnel issues in the most appropriate way, given the circumstances.

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