Hiring great employees is difficult—and legally dangerous. Just a few ill-timed words in a want ad or interview can trigger a legal complaint. Here are the key liability hot spots to watch out for in the hiring process.
An ad that directly or indirectly states a preference for applicants based on gender, age or other protected characteristic is generally unlawful. When drafting ads, 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.”
Exceptions to this general rule: When a “protected” characteristic is a bona fide occupational qualification, such as seeking a female to staff a women’s locker room.
No law requires maintaining job descriptions, but it’s a good practice. Job descriptions can help applicants understand job requirements and discourage unqualified applicants. When drafting job descriptions:
- List the “essential functions” of the job.
- Detail skills, knowledge and abilities required to perform essential functions, plus any special requirements.
- Include nonessential functions that an employee may be asked to perform occasionally.
- 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 duties and that may revise it at any time.
Face-to-face interviews help hiring managers assess applicants’ 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, such as:
- Marital status: Are you married? Is that your maiden or married name?
- Age: How old are you? When did you graduate?
- 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 do you attend? What religious holidays do you observe?
- National origin/race: Where were you born?
Federal law limits employers’ ability to obtain background reports and demand pre-employment medical examinations. Before checking an applicant’s references, notify him or her in writing. Obtain written consent to the reference checks.
When checking an applicant’s references, ask only for job-related information. Stay away from anything unrelated to how the person could perform the task at hand.
Don’t make promises you don’t intend to keep. Enthusiastic managers sometimes make statements to applicants that suggest long-term or permanent employment (“You’ll always have a job here if you hit your sales quota”) or indicating that they can only be fired for cause. (“You will always be treated fairly.”) Those statements can easily become ammunition in later breach-of-contract litigation.
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