Legal Issues When Hiring Employees

Hiring an employee has become an entirely different task since September 2008. Unemployment was already on the rise but has now hit record levels. Because of the high unemployment rate and continuing news of more layoffs, employers that are hiring have a number of issues to consider to make sure they don't get into legal hot water.

The current economic climate has created an employer's market for most organizations. Although it's desirable to have many candidates for open positions, human resources pros may be drowning in the deluge of resumes pouring into their offices. Large organizations may receive thousands of resumes a day, while smaller employers may collect hundreds of resumes for just one open position.

Add to that the fact that technology has made it much easier for people seeking work to apply to many more companies than was ever possible before and HR is now having to truly look for the needle in an evergrowing haystack to find the right employee for a position. Many human resources professionals are also looking for ways to use technology to attract good employees and manage the glut of resumes and paperwork involved in hiring.

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Hiring basics
Unlike firing, disciplining, or even making the tough decision of which employee to promote, hiring should be purely rewarding. Often, needing to fill a new position is an indication that a business is prosperous and growing.

However, just like having fun can sometimes be hard work, hiring can be wrought with its unique set of very real challenges. For example, many human resources specialists point out that the best way to handle problem employees is to never hire them in the first place. Regardless of how much truth there is to that, few would argue with the sentiment that good hiring leads to a better workplace.

All-around good hiring requires either good luck or effort on the part of human resources to correctly develop all the steps of the hiring process. Finding the right person means making sure that all the components are in working order. Posting the job with the correct information, handling and organizing the applications and resumes, conducting interviews, performing background checks, checking references, and finally evaluating all of the information about the different candidates are all critical steps to this process each with its own unique requirements and skills. There are, of course, other potential issues such contractual issues, immigration paperwork requirements, conducting employment tests, and others.

Audit your hiring policies and practices with the Employment Practices Self-Audit Workbook

Legal issues in hiring
At every stage of the hiring process, employers must be careful not to illegally discriminate against applicants for the position. Since discrimination is prohibited on the basis of race, gender, national origin, age, religion, and disability – and by now most job applicants know that – any indication of bias in the hiring process might lead to serious legal repercussions.

For example, even a seemingly innocuous question during the interviewing stage such as “when did you graduate from high school?” can potentially lead to a lawsuit under the Age Discrimination in Employment Act (ADEA). Employers and personnel in charge of interviewing also should be aware that, even though Title VII of the Civil Rights Act of 1964 prevents hiring men over women or vice versa, it doesn't cover discrimination based on marital status or sexual orientation. Some state legislatures have guaranteed protection against discrimination of this kind and federal legislation has been proposed as well.

State-by-state comparision of 50 Employment Laws in 50 States, including discrimination laws

The obvious exception to all of this is affirmative action, which allows employers to discriminate on the basis of a protected category — such as race, sex, national origin, or religion — when the affirmative action is done to remedy past discrimination in a particular job category or industry.

Generally, affirmative action strategies are allowed only when evidence exists that a history of past discrimination has prevented minorities from holding positions in specific job categories or industries. The current trend shows that courts are beginning to read that exception more and more narrowly, tightening the requirements for companies that want to implement affirmative action strategies.

Training supervisors to hire and interview well
Often supervisors and managers are involved in the hiring and interviewing process as well as human resources and upper management. It's important to train supervisors in hiring and interviewing skills because a supervisor who asks inappropriate questions or says inappropriate things when communicating with job applicants or other employees could create legal problems for his employer.

Basic Training for Supervisors, including hiring

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HR Tools for Hiring

• Sample Policy - Authorization to Hire
• Sample Policy - Preemployment Drug Screens
• Sample Policy - Background Checks
• Sample Policy - Employment Contracts
• Sample Policy - Employment Agency/Search Fees
• Sample Policy - Signing Bonus