Legal Hazards in the Hiring Process

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As a recruiter or human resources professional, you love to find great talent for your employer. It feels wonderful when you have an opening, identify the right person, and make a match. However, hiring someone is a sensitive matter, and if you do not follow the law carefully, you could end up with costly and embarrassing lawsuits.

Employment law is very complex. You want to treat people fairly, but you are afraid that words and actions that you believe are benign might be used against you. Also, there are employment laws at the federal, state, and local levels. In Florida, “some local ordinances regarding family status are stricter than state law,” notes Scott Behren of the Behren Law Firm in Weston, Florida. This fact means that an HR Representative for a small practice in Palm Beach County has to comply with regulations that simply do not exist on a practice in the northern part of the state.

Challenges in the Interviewing Process

An applicant makes an impression on you as soon as he or she walks through the door. In some parts of the country, there are laws regarding the impact that an interviewee’s personal appearance can have on hiring decisions. “In Washington DC, the DC Human Rights Act prohibits discrimination on personal appearance,” notes Thomas Simeone of Simeone & Miller. It is important to know the statutes in your area so you do not include any out-of-bounds comments in your interview notes.

When you are interviewing someone for a position such as a Registered Nurse, it is not uncommon for the interviewee to have a gap on her resume. A thorough vetting means making sure that the person was not out of the workforce for some terrible reason like being in jail. However, sometimes an applicant tells you she was home with her small children, and you are afraid that if you document the explanation, you open your employer up to lawsuits on the grounds of family status.

There are appropriate ways to note answers. Michael Marra, an employment law attorney with Fisher Phillips in New York, advises interviewers to use phrases such as “legitimate basis for gap. Reasons presented nothing of concern.” That way, if a co-worker or hiring manager reviews your notes, he or she knows you screened the applicant thoroughly.

Additionally, there are legal hazards when it comes to the unglamorous issue of storing records. Yet, you expose your employer to lawsuits if you do not know and do not follow the law. When it comes to application materials, “The guidelines from the EEOC,” notes Scott Behren, “are to keep applications and resumes for one year.”

Making a Decision / Onboarding

Some healthcare positions involve a good deal of physical activity. As someone in the Human Resources field, you must tread carefully on this issue. A good way to reduce legal risks is to “write a job description that includes the essential elements,” says Michael Marra. Sometimes a disability is not revealed until after you make a conditional offer of employment. Samuel Ventola of Ventola Law in Denver, CO, recommends employers take these steps. “Make sure that you have considered all possibilities for an accommodation and have this documented. Make sure the necessity of the qualification that the applicant cannot meet is documented.  Also, consider whether the applicant could be hired in a different position.”

You must document a legally defensible reason why you did not hire someone. It is not enough just to say you did not make a hiring decision based on sex, race, or family status. “You can protect yourself by documenting the legitimate reason you did not hire them,” notes Thomas Simeone.

If the applicant joins your team, you must comply with records laws that vary depending on city and state. For instance, it may be wise for employers in New York to keep “employee records for up to three years after termination,” says Michael Marra. “Even though the law only requires most non-wage records to be kept for one year, New York law allows employees to sue for certain improper conduct up to 3 years after termination.”

Educate Yourself about Employment Law

From records storage to the interview process, the values of different communities end up in the law. It is not enough to say you do not discriminate. You must educate yourself on employment law and document your decisions carefully. That way, you can avoid the legal hazards in the hiring process.