In our last lesson we continued our series on hiring and managing, with a look at some of the legal considerations when hiring new employees. In today’s lesson we are going to continue that series with a look at how to avoid legal landmines when interviewing.
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There are lots of questions one cannot ask, either in writing or verbally, when interviewing a job candidate. The same is true when in contact with the references that they provide. These questions, which might seem natural for an interviewer to ask, are forbidden because of their potential for discriminatory abuse. Below is a list of areas in which the interviewer is not allowed to ask questions and examples of questions which are not allowed.
You cannot discriminate based upon, or try to find out (ask direct or indirect questions about) the following:
1) Race, Nationality, Ethnicity
Example of an inappropriate question: Does your last name mean something in a different language?
2) Age, Gender, Marital Status
Examples of inappropriate questions: How many years until you qualify for social security? Should I call you Ms. or Mrs.?
3) Religious or Political Beliefs / Affiliations
Example of an inappropriate question: Are there any special holidays that you will need to take off?
4) Credit History or Past Bankruptcy
Example of an inappropriate question: Are you responsible when managing your personal money?
If a job has certain physical requirements, those requirements should be stated in the job description. You are allowed to ask specifically if the candidate can do a physical task required for the job, and mentioned in job description. All candidates should be asked these questions without a person with disabilities being singled out.
Example of an inappropriate question: Will you need any special help to do the work?
For even greater guidance on this topic, please read What You Can and Can’t Ask – Legal / Illegal Interview Questions.
There are certain areas in which there is no federal law, but various states have laws limiting the types of interview questions you can ask. These include past crime convictions and sexual orientation.
Here are couple good articles on these topics:
What should you do if the job applicant volunteers information in one of these areas? Don’t ask follow-up questions or write down the information.
When using a service to check the background of a potential employee, you should tell the potential job candidate what information you will be checking and get their written permission to proceed with the background check. You are also required to disclose the results to the employee. If you want to do a background check on one candidate, you should probably do a background check on all the candidates still in consideration to insure fairness.
If you plan on doing background checks then you should read a more in depth article on the topic like the one from Backgroundcheck.org found here.
Generally speaking, employers are allowed to test new-hires for drugs as a condition of employment. Laws do however vary from state to state. You should not single anyone out for a drug test (ie, because a person looks like a pothead ask them for drug test). Instead your firm should have a uniform policy in place like firm-wide testing, or testing all new-hires for a particular type of position. You should only test candidates that you have offered a position, and when advertising the position, you should let potential candidates know that they will need to pass a drug-test prior to starting work.
If you plan on drug testing as a part of the hiring process then you should read a more in depth article on the topic like the one from Nolo.com found here.
Making A Job Offer
A formal job offer in writing can be useful in preventing misunderstandings that spill over into legal disputes later on. A basic job offer letter should include the following:
- Start Date
- Salary and Compensation Package
- Name Of The Position (and potentially the name of their supervisor)
- Benefits. Also, you should mention how long the candidate has to respond to the job offer and who they should notify.
In job offers, you should mention any conditions attached to job offer which may include the following:
A) A Probationary Period
A probationary period is a limited amount of time in which the employee’s performance is evaluated and can be fired if not meeting certain evaluation standards.
Most states have “at-will employment” meaning that employers can let employees go with or without providing a reason and without giving notice, unless their is a contract or implied contract between the two. The exceptions to at-will employment are Alabama, Louisiana, Maine, Nebraska, New York, Rhode Island, Florida. In practice, firing employees without a good cause or reason is a bad idea for all sorts of reasons in any state. Some argue that in states with at-will employment, a probationary period is unnecessary and can create legal problems.
If you plan on setting up a probationary period then read this article on the topic from Inc.com.
B) Taking A Drug Test
If they need to take a drug test to get the position, this should be stated in the offer letter.
C) Signing Non-Compete, Non-Solicitation, and Confidentiality Agreements
Larger companies often require employees, specifically executives, to sign a trifecta of legal documents when coming onboard for a job. A non-compete limits an employee’s ability to take a position with another firm in the same industry. Non-Solicitation prevents an employee from leaving the company and from trying to recruit their former colleagues for jobs. Confidentiality agreements require that employees don’t share the ingredients of your company’s secret sauce or customer list.
For white collar jobs, even a smaller company might want their employees to sign a confidentiality agreement.
Learn more about non-compete agreements in this article from KKRLaw.com.
Learn more about confidentiality agreements in this article from Rocketlawyer.com who also offers tools for creating a confidentiality agreement and a non-compete agreement which you can find in their document library here.
That’s our article for today. If you have any questions or comments please leave them in the comments section below. Also be sure to stay read the next article in this series where we discuss how to write a job description and attract the perfect candidate in 5 easy steps.
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