BUILDING A STRONG WORKFORCE (Part One): The Hiring Process

Every business owner and HR director wants to make sure they are building a strong workforce.  This is Part One of Three as we explore some of the legal issues involved in hiring, firing and maintaining employees in your business.   

The Hiring Process: Legal Concerns

Potential employees/job applicants have legal rights even before getting a job.  Job applicants generally have many of the same legal protections as employees.  Employers are subject to legal restrictions that affect the entire hiring process from what the job posting can say, what they are allowed to ask during an interview and what kind of background check or preemployment testing can be required.  

Job applicants are protected by both state and federal laws.  These laws mainly protect against discrimination, by making it illegal for employers to treat employees or applicants adversely on the basis of an “immutable characteristic.”  These are things that people cannot change or should not be expected to change about themselves to get a job. For example, one cannot change one’s race, color, gender, age, or national origin, cannot readily change one’s disability status, and should not be expected to change one’s religion as a condition of getting or keeping a job.

So, what does that mean for you as an employer? And what kinds of things should you be doing during the hiring process?

Step 1: The Job Posting and the Job Description

There are a lot of things you should consider even before you announce a job opening.  One thing to note is that there is no specific law that obligates private employers to post jobs in any particular way so you should determine whether you will search internally, outside the company, through the newspaper or use the internet.  Whatever you select you want to throw a wide net to make sure that your posting reaches all demographics. The goal is for your job posting to generate a wide range of applicants not only because a large applicant pool increases the changes of finding a really good new hire, but also because it will help in the event of a discrimination claim, as the Equal Employment Opportunity Commission and the Texas Workforce Commission Civil Rights Division generally consider that to be evidence of an open and fair hiring process.  

As for the actual job posting, what should it say?  First, you want to avoid gender specific job titles in your job posting.  It is generally recommended that employers try to use gender-neutral job titles and position descriptions whenever possible.  For example, something like seamstress should be replaced with sewing machine operator.  Other things to keep out of job posting, would be anything the Equal Employment Opportunity Commission might consider to have a direct or indirect impact on minorities such as “recent graduate,” “no criminal record,” or “must live within city limits.”  Unfortunately, in this day and age, even something as innocuous as “energetic” can be construed as the employer is looking for someone young. You would want to replace that with something like “hard-worker.” 

You also need to consider the actual job description because, what an employer puts in a job description is considered the primary determinant of what the essential functions of the position are.  A good job description makes is much easier to measure an employee’s performance and hold him or her to known standards, which is important for promotions, job transfers, raise reviews and corrective action.  Additionally, a good job description makes it much easier to deal with an unemployment claim if a work separation occurs because of a claimant’s failure or refusal to perform the functions of the position.  So, what kinds of things do you need to include in a “good job description”?  Any good job description will be specific enough to accurately describe the job in question, yet flexible enough to include other duties as assigned.  The company should make it clear to all employees that when the needs of the company or its customers dictate, their jobs will entail whatever needs to be done that is assigned by a supervisor and is within the employee’s capacity to deliver.  Be sure to include the requirement that part of each employee’s job is to work the assigned schedule and comply with the company’s timekeeping policy.  Some of the best help you can find in drafting a particular job description will be supplied by the supervisor of the position in question and by the experienced employees who are already performing that job.


Step 2: The Job Application

Now that you have the job posting completed, what about the job application?  Not everyone uses one, but if you do, you should be careful about the types of information requested.  Specifically, job applications should solicit only job-related information.  If a potential question for the application will not help determine who is the best qualified applicant, do not ask it. 

It is permissible to ask about: identifying information, including contact information; prior work-related experience; prior employers; dates of employment; rates of pay; whether the applicant is at least 18 (if the concern is to avoid child labor problems), or a minimum age such as 21 (if the concern is to determine insurability as a driver of company vehicles or operator of certain equipment); work-related certificates and licenses, including dates of issuance; work-related education and training, including dates; job reference information; job-related criminal history; and availability or restrictions as to type of work, work schedules and work locations.  Be sure to ask about hours and days of availability for work; let applicants know that if they indicate availability times that do not match the job posting or the job description, they may not be further considered for the position in question.  

If you are going to ask about an applicant’s DOB, SSN, DL # in order to facilitate a job-related background check, best practice is to obtain such information as late in the application process as possible to minimize the amount of confidential information obtained and the risk that it might be compromised in some way.  Be aware that once you have obtained that type of confidential information from an individual (even for a lawful purpose) you have a responsibility to both keep it confidential and protect the information obtained.  Unless there is a bona-fide occupational qualification or statutory requirement do not ask about an applicant’s race, color, religion, gender, age, national origin or citizenship, disability, or genetic information. 

At the end of an application, let applicants know that by signing and submitting the application, they consent to the employer verifying the information supplied and that any wrong or incomplete information can result in the applicant not being hired or if the problem comes to light after hiring, it can result in the immediate dismissal from employment.  If you are planning to require job-related testing (this includes medical exams, drug testing etc.) applicants should also sign a consent to this testing. The Equal Employment Opportunity Commission requires employers to keep solicited job applications for at least one year – it is best to keep them as least 4 years in order to exhaust all possible statutes of limitations for various employment law causes of action.  The application of the successful candidate should be kept for a period of at least 7 years.  With regard to unsolicited applications, there is no law that requires employers to accept resumes and/or applications if there are no job openings, but as an employer you should make it a standard practice to either keep all unsolicited applications, or throw them all away.  “Cherry picking” can easily lead to disparate treatment claims.  It is a good idea to have an employment attorney or someone from human resources review any job postings or applications to make sure you are in compliance with state and federal employment laws.


Step 3: References, Background Checks, Pre-Employment Testing

As I just mentioned, prior to conducting any sort of reference investigation, background check or pre-employment testing on an applicant, you will want to require the applicant to sign a consent and waiver.  With respect to applicants younger than 18, you need to secure permission from the child’s parent or guardian to conduct background or drug tests.  An attorney can usually put one together for you quickly and at little cost.  When it comes to any sort of pre-employment investigation or testing, the best practice is to wait to conduct these investigations until as late as possible in the hiring process.  Wait until you have narrowed down your choices to only a few or made tentative offers.  This will lower the risk of discrimination-based claims.  

You should be aware that many employers are afraid to give up any information on past employees for fear of being sued for defamation.  Some of this concern can be alleviated by requiring applicants to sign that consent permitting former employers to share. Additionally, you can inform a former employers that the Texas Labor Code makes an employer immune from liability in this regard unless they lie.  Please be aware that this works both ways, don’t give a bad former employee a good reference to try to insulate yourself from a defamation claim, because you could end up with a negligent referral claim against you by the new company.  Whatever information an employer releases in connection with a job reference should be factual, in good faith, and non-inflammatory. Avoid using words like “thief” or “liar”, instead say something like “they violated the company ethics policy.” Under the Texas Labor Code, a truthful written job reference cannot be the basis for a defamation lawsuit.  

Employers may conduct criminal background checks and credit checks, but there are some things you should be aware of if you choose to go that route.  Again, you will need to notify applicants that you intend to conduct these checks and obtain consent from them.  If an applicant is turned down as a result of one of these checks, the employer must tell the applicant why, give the applicant a copy of the report and let them know the name and address of the service that furnished the information.  Unless a law requires such a question (this would be in very limited circumstances) do not ask about arrests.  A company can ask about convictions and pleas of guilty or no contest.  Also, if an EEOC claim is filed, the employer must be prepared to show how the criminal record was relevant to the job in question.  For example, someone convicted of a financial crim like embezzlement would probably rightly be disqualified from a job in the financial industry where they are handling company or client money, but it probably wouldn’t disqualify them from a job as a chef at a restaurant.  


Pre-Employment tests or examinations must be job-related and non-discriminatory (i.e. required of all applicants in that job category).  Job related skills test are permissible if administered consistently and are the best way to confirm whether an applicant’s claims of expertise in a certain type of work are true.  The Americans With Disabilities Act prohibits medical inquiries prior to making a tentative offer of employment.  If medical inquiries are made, the same inquiries must be made of all applicants for a like position, and must be accompanied by a genetic information notice.  Additionally, the ADA requires employers to maintain any and all medical information in a separate and confidential medical records file.  Drug tests are not included within the definition of medical examinations and may be given at any time, but the same confidentiality rules apply.  Also, if a drug test reveals a disability, the ADA issues come into play again.  The employer must be prepared to offer a reasonable accommodation to any otherwise qualified applicant who turns out to have a protected disability.  A “reasonable accommodation” is a change is procedures, a device, a change in duties, a shifting of personnel, or a change in the work environment that the employer could make without undue hardship to its business and which would enable the applicant to perform the essential functions of the job.  Again, this is why the job description is so important.


Step 4: The Interview

When interviewing applicants, apply the same standard that is applied to the applications (i.e., ask only about things that are directly related to the job requirements for the position under consideration.  Something that you should watch out for is tape recording.  The applicant might tape-record the interview without the employer’s knowledge and a video or tape recording would be discoverable in a discrimination claim or lawsuit.  Tell the personnel who conduct the interview to be extremely careful about note-taking during interviews.  Anything like that can be discovered in a claim or lawsuit.  Many discrimination cases have been lost due to careless or embarrassing comments written by interviewers.  The question to ask yourself before you write down any notes is whether you would be comfortable explaining the note to a judge or jury.  


Step 5: Deciding on the Best Candidate

Notwithstanding discrimination laws, employers may always hire the best-qualified candidate for the job, but what are you as an employer looking for?   Obviously, you are looking for someone who can perform the essential functions of the job, but along with that, you are going to want/need to find someone who can work well with you and your team.  This is especially true for smaller companies who rely on every team member pulling their weight and creating value.  The important thing is to be able to explain how the applicant who was hired really had the best qualifications and was the best “fit” for the position in terms of legitimate, job-related factors.  That, of course, requires a very close and careful look at the job applications and other information about applicants and a meticulous consideration of all factors that are relevant to the job, such as minimum qualifications, prior experience, availability, and work ethic (job reference checks can be helpful there).  In general, employers do not have to explain why they are not hiring a particular applicant so it is best to restrict any explanations to short and factual, non-inflammatory statements such as “you seem to have some good qualifications. However, the one we hired better fit the requirements we had at this time. Please check back with us about any openings we might have in the future. Thank you.” Also, try to avoid ever using the term “overqualified” to explain why a person is not suitable for hire – as it can be considered to be potential evidence of age discrimination.

If you have questions about your hiring process for possible legal issues, contact your business attorney for advice and legal council.

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