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HIRING

Finding the perfect person to join your team requires more than just a well worded internet job posting.  The process of drafting legally compliant applications, reviewing those applications, the process of selecting candidates to interview, the interview process and questions that are appropriate to ask a candidate along with background checks are filled with potential legal pitfalls long before resumes start flooding your inbox.  The information below, including additional information, FAQs, checklists, resources and the forms needed should help with a smooth hiring process.  Our experienced attorneys are also available (through our Premium Services) to guide you through the hiring process (job postings, applications, interviews, and offers) to ensure that you stay up to date and in compliance with local, state, and federal laws.



 

JOB POSTINGS

Before you think about the qualities a perfect candidate will have, think about what you need that candidate to do.  Recent and accurate job descriptions are a must have before you begin your search, and can protect your legal interests.  Use our job description templates to know what you need before you start to look.

Federal and state laws do not require employers to have written job descriptions for their employees. However, many employers do because of their usefulness in many aspects of the business, from hiring to compensation to managing employee performance. While there are many practical benefits to having job descriptions, these documents also raise legal implications. A poorly drafted job description can increase litigation risks by providing evidence employees can use in wage and hour, discrimination and other employment-related lawsuits.

Elements of a Job Description

A job description is a document that describes certain details about a particular position. It typically contains the following elements:

  • Job title. The document may also specify a job code applicable to the employer's internal operations, pay grade and to whom the position reports.

  • Job classification. A job description often specifies whether a job is:

    • exempt or nonexempt from pay requirements under federal and applicable state laws;

    • full or part-time; or

    • a temporary, contract or regular position.

  • Duties. A job description should specify the responsibilities, duties, tasks and requirements of the job (for more information.

  • Qualifications. The qualifications needed for the job should be listed. Some employers separately list qualifications that are required versus those that are preferred. These qualification can include, for example:

    • education level;

    • any professional or other required licenses or certifications;

    • prior work experience in a particular field or type of position;

    • skills, such as proficiency in computer software or word processing systems; or

    • traits, such as attention to detail or the ability to work under time pressures.

  • Physical requirements. The job description can specify the physical requirements of the job, such as standing, sitting, lifting requirements and the physical work environment.

  • Additional information. The job description can include other information, such as location, travel requirements and working hours.

While written job descriptions are not required by law, employers covered by the Equal Pay Act (EPA) that create written job descriptions must preserve them (any other are records created in the regular course of business that contain wage payment-related information) for two years.

 

APPLICATIONS 

While not required by law, we highly recommend employers require applications to fill out an application even if they give you a resume.  The job application acts as further screening process, acts as a legal document (typically has at-will language and requires them to sign off that the information provided is truthful, mitigates your risk of discrimination claims (resumes could have pictures or unequal formats whereas the application gathers the information in a consistent manner).

Ban the Box?  National origin?  Do you know what types of information you can ask a candidate to provide, and what kinds of interview questions can open you up to serious liability?  We can help you tailor your application to ensure that you have all of the information you need to narrow your search, and none of the information that could potentially violate the law.

 

interview process

Poorly planned interview processes can result in poor candidate selection, potential legal issues, and an overall negative experience for the candidate, making it difficult for you to find the right candidate to hire.  These key steps below will help ease te process and lead to beter results.

 

Before the Interview:

  • Interviewing can be stressful. Do your best to help candidates relax. Make sure each candidate is greeted and escorted, if necessary, to the interview location. Start with low-key questions.

  • Don't judge on first impressions -- people who don't make a great first impression but end up being great employees. To make sure you don't overlook these diamonds in the rough, withhold judgment until you've had the chance to thoroughly evaluate a candidate's capabilities and potential.

During the Interview

  • Start with an overview about the position and what you are looking for: While you don't want to dominate the interview time, you should start with a brief summary of the position, including the prime responsibilities, reporting structure, key challenges, and performance criteria. This will help the candidate provide relevant examples and responses.

  • Listen, listen and listen: If you are talking more than 70% of the time, you will not be able to obtain enough information to distinguish between candidates or to determine a candidate's true competencies. We suggesting thinking about a 70/30 split, listening 70% of the time is difficult, and can be a little uncomfortable unless your are conscious of how you are doing, and how critical listening is!

  • Take notes: While you won't want to transcribe everything the candidate says, do write down important points, key accomplishments, good examples, and other information that will help you remember and fairly evaluate each candidate. An interview guide, prepared in advance, will make note-taking easier and give you a structure for capturing key information.

  • Try to engage the candidate to ask questions during the interview. There is nothing more uncomfortable or can end an interview with a thud if you talk a majority of the time, and at the end ask "do you have any questions". If the candidate did at that point, they have probably heard you speak enough, and are ready to leave!

  • Be ready with questions "you" would ask if you were the candidate. If the candidate is nervous or not ready for question, you still want to learn critical things like: Why do they want to be here-- is it the challenge of the job, advances in the industry, or something specific about your company? Or is the candidate fixated on salary, benefits, and time off? If the candidate has no questions this should be a red flag, especially for senior-level employees.

  • Know and follow legal interviewing guidelines: It is critically important that every interviewer at your company, from HR clerks to top executives, understand and follow legal hiring guidelines. The easiest way to keep your interviews fully compliant is to ask only questions that relate to the job, eliminating the potential for bias by not introducing questions or scenarios that will elicit irrelevant information.

After the Interview

  • Let candidates know what they can expect: A pet peeve of many job seekers is that they are left "hanging" after an interview, or they are promised follow-up that never comes. If the candidate is a good fit, be clear about what the next steps will be. And if the candidate is not a good fit? "Always end the interview on a positive note, but be genuine," says Goldman. "Don't tell the candidate to call you if you don't mean it."

  • Compare notes and reach consensus: The post-interview evaluation is the time to compare notes and advance the hiring decision. Each interviewer should be prepared to back up remarks and recommendations with specific examples and notes from the interview.

 

background checks

Employers often want access to information on job applicants and current employees to improve the chances that employers hire, retain, and promote the best candidate for the job. However, employers must use background checks and references appropriately. Otherwise, they can be exposed to substantial legal and financial risks. (If you need a background check provider, click the following "button" to our Partner TopDogHR - one of the best in the business! 

There is no obligation to carry out background checks for most positions in the private sector. However, there are industry-specific laws requiring background checks for dangerous or sensitive jobs, such as professional drivers, security guards, and caregivers. Even without a legal requirement, there are good reasons to conduct background checks on applicants for employment, as set out below:

Reduce Exposure to Litigation

If an employee causes harm that could have been avoided by appropriate pre-hire due diligence, an employer exposes itself to legal liability based on several grounds. For example:

  • Respondeat superior. Latin for "let the master answer," this is the legal principle that employers may be subject to liability for acts of their employees (also known as vicarious liability. Respondeat superior liability requires a showing by a plaintiff that the wrongdoer (also known as tortfeasor) employee acted within the scope of his job duties and for the employer's business purposes. If the employee acted exclusively for personal interests, the employer will not be held liable.

  • Independent employer negligence claims. If an employee acts outside the scope of his employment, so that respondeat superior does not apply, a plaintiff may attempt to hold the employer accountable on grounds of independent negligence. Examples of independent negligence theories include negligent hiring, negligent supervision, and negligent retention. 

  • Health and safety violations. OSHA requires employers to provide employees with a workplace free from recognized hazards that do, or are likely to, cause death or other serious harm. Workplace violence presents this kind of hazard

 

Reduce the Risk of Employee Theft and Other Honesty Crimes

Appropriate due diligence, including the use of background checks, can help minimize the risk of:

  • Inventory theft.

  • Intellectual Property theft.

  • Theft from fellow employees.

  • Embezzlement.

  • Fraud in the workplace.

Reduce the Risk of Workplace Violence

Background checks improve an employer's chances of avoiding workplace violence. Workplace violence adversely impacts employee morale, turnover, attendance, and productivity. For more information on workplace violence.

Confirm the Accuracy of Applicant's Credentials

Background checks allow employers to determine the accuracy of candidates' representations about their academic and professional credentials. Resume fraud and inadvertent error are common. 

Reduce the Risk of Noncompliance with Immigration Law

Employers hiring individuals who are not authorized to work in the US could face stiff penalties, including fines in the thousands of dollars and possible imprisonment. Background checks help keep those risks to a minimum

 

The Fair Credit Reporting Act and the Use of Third-Party Providers

Employers conducting background checks can run the check themselves or use a third party. However, it is nearly impossible for employers to gather some kinds of information independently, such as credit history and criminal records. As a result, most employers use third-party providers.

Employers using a third-party service provider, also known as a consumer reporting agency, must follow the rules established by the FCRA (amended in 2003 by The Fair and Accurate Credit Transactions Act and in 2010 by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank))).

The FCRA applies to the use of third-party service providers to obtain background information on applicants and existing employees. Its purpose is to encourage fairness, truthfulness, and confidentiality in obtaining and using background check reports.

In-house background checks may be regulated by state law, as they are in California.

Employer Obligations Under the FCRA

The FCRA imposes specific obligations on both CRAs and employers using their services. Employers' obligations include a rigorous set of notice, disclosure, and consent requirements, both in conjunction with obtaining reports and taking adverse employment actions because of information in reports. The FCRA defines "employment purposes," in the context of a consumer report, as "employment, promotion, reassignment or retention as an employee".

This Note does not cover the special rules applicable to commercial driving companies requesting reports on drivers who have no physical contact with the company.

Consumer Report Obligations

When using consumer reports for employment purposes, employers must comply with relevant portions of the FCRA:

  • Before obtaining a consumer report, the employer must notify the individual (using an easy-to-read document) that the employer may be obtaining the report. This disclosure must contain the FCRA notice only and must not address any other topics. For example, including the disclosure in a job advertisement or job application does not meet the requirements of the FCRA. 

  • The employer must obtain written consent from the individual before obtaining the consumer report. Employers that use applications that are completed online and submitted electronically should also be aware that this practice may be challenged in the courts. Some employers have faced class action lawsuits because of their use of an "I agree" box to obtain an applicant's consent to the terms and conditions of an online job application, including an authorization to obtain a consumer report on the applicant (this consent practice is often referred to as a click wrap agreement).

  • The employer must certify to the CRA that it will comply with disclosure and "adverse action" requirements of the FCRA and will not use the information provided to violate equal employment opportunity requirements (see Adverse Employer Actions. The CRA may supply a form for this purpose to the employer. The employer should review the form supplied to ensure that it does not impose more obligations than the statute. 

  • It is the CRA's obligation, not the employer's obligation, to notify the individual of his rights

Adverse Employment Action Obligations

If a CRA supplies an employer with a consumer report or an investigative consumer report and the employer intends to take an adverse employment action based either entirely or in part on information in the consumer report, the employer must meet additional requirements. Adverse employment actions include decisions not to hire and other employment decisions that negatively impact applicants or employees.

The employer has obligations both before and after taking the adverse employment action:

  • Before the action. The employer must provide the investigated individual with a copy of the consumer report and a written summary of consumer rights. This summary may be obtained from the CRA but should be reviewed by the employer for accuracy. As of January 1, 2013, the employer must use the new summary of consumer rights under the FCRA that includes contact information for the CFPB..

    Dodd-Frank created the CFPB and transferred primary authority to publish rules and guidelines under the FCRA from the FTC to the CFPB. The employer does not need to provide any additional information about the adverse action at that time. Although the FCRA does not specify how long an employer must wait between obtaining a report and taking an adverse employment action, employers should give the investigated individual a reasonable amount of time to respond to the report's contents before proceeding with the adverse action. The FTC found that waiting five business days after supplying the required notice to the employee before taking an adverse employment action is reasonable.

  • After the action. The employer must comply with another set of disclosure rules under the FCRA, as amended by Dodd-Frank. The employer may provide post-adverse action disclosures in writing, orally, or electronically. Oral communications are not recommended; therefore, employers should maintain a written record. The employer does not need to offer additional information about the employment decision, but must provide the following information:

    • notice concerning the adverse action;

    • notice of the individual's credit score, if used in taking the adverse action, along with the range of credit scores under the credit reporting system used, the key factors that adversely affected the credit score of the individual (the disclosure should not include more than four factors), the date the credit score was created, and the name of the CRA that provided the credit score (as required by the Dodd-Frank amendment to FCRA);

    • contact information for the CRA that provided the report, including name, address, and phone number;

    • a declaration that the CRA cannot provide specific information about the reasons underlying the adverse action and that it did not make the adverse action decision itself;

    • notice of the individual's right (within 60 days) to request and acquire another copy of the consumer report at no charge from the CRA; and

    • notice of the individual's right to contest the contents of the consumer report with the CRA.

    If an employer obtains a report with negative information but decides to make an employment decision for reasons completely unrelated to the report's contents, it is good risk avoidance practice to provide the investigated individual with:

    • a copy of the report;

    • notice of his rights; and

    • an explanation that the report's contents were not relevant to the employment decision.

    The employer does not need to offer any additional information about the employment decision.

 

 

FAQS

Q. What needs to be in a job description?

A. A job description should contain a list of duties that the employee will perform, the essential functions of the job, and the skills needed to perform the job.

 

Q. What is an essential function?

A. An essential function is a duty or responsibility that must be performed by the person in that role in order for the employer to successfully conduct its business, including the mental and physical requirements of the job. 

Examples:

The job requires the employee to lift up to 50 pounds, and the lifting cannot be assigned to another employee.  The lifting requirement is an essential function of the job and should be included in the job description. 

The job requires the employee to be present in the workplace for the business to operate, and it is impossible for the employee to telecommute or have the employee’s duties absorbed by other employees during a shift.  Regular attendance is an essential function of the job and should be included in the job description.

The job requires the employee to interact with the public in a high-stress, fast-paced environment.  Public interaction and working under deadlines and pressure are essential functions of the job and should be included in the job description.

 

Q. Why do I need to include the essential functions of the job in a job description?

A. Defining the essential functions of the job is critical if an employee, due to a disability, requires an accommodation or modification of job duties or work schedule.  Providing candidates with a job description that lists the essential functions of the job allows those candidates to determine whether they are interested in the work and feel they could be successful in the position, which makes the hiring process more efficient.

 

Q. What should a job application contain?

A. Your job application should be a tool to get an overview of your candidate’s skills and experience, and determine whether these qualifications relate to the position.

              Examples of information to seek on a job application:

                             Education

                             Previous employment

                             Professional references

                             Whether the applicant is currently subject to a non-compete or other restrictive covenant (if relevant)

                             Past responsibilities and achievements

                             How the applicant’s education and experience make him or her a good fit for the position

 

Your job application should also contain a statement indicating that you are an equal opportunity employer, and that you will not discriminate on the basis of protected class status in your jurisdiction.  It should also state that applicants with disabilities may be entitled to reasonable accommodations under the Americans with Disabilities Act, and the contact information for a company representative responsible for providing assistance with the application process.

 

Q. What should not be on a job application?

A. A job application should not contain any questions that elicit information about an applicant’s membership in a protected class (race, religion, national origin, age (40 and over), sex or gender identity, sexual orientation, or disability).

              Examples of information that should not be sought on a job application:

                             Date of birth

                             Place/state/country of birth

                             Maiden name

                             Membership in political or religious organizations

                             Race or ethnicity

                             Disability or other medical information

                             Type of discharge from the military (honorable/dishonorable)

 

Q. Can I ask about criminal history?

A. It depends.  Many states and localities have enacted “Ban the Box” legislation, which prohibits employers from inquiring about criminal history until later in the hiring process.

The Equal Employment Opportunity Commission (EEOC) recommends against inquiring about criminal history on job applications.

Based on the nationwide trend of “banning the box” and the guidance from a federal agency, the best practice is to remove questions about criminal history from job applications.

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