a
how-to guide to hiring
Hiring a new employee to work in a small business
is process fraught with legal issues. The federal
government and most states have anti-discrimination
laws in place protecting applicants and employees
from hiring and employment decisions based on race,
color, religion, national origin, sex, pregnancy,
age, disability, union affiliation, or veteran status.
(Some states also prohibit discrimination based on
other categories, including sexual orientation, marital
status, and arrest record.) Would-be employers must
comply with the law at every step of the hiring process.
Criteria That Can Get the Employer in Trouble
Examples of job criteria that have been found to
discriminate against certain groups include:
• height and weight standards (which may adversely
impact women and members of certain ethnic groups);
• fluency in the English language (which may
adversely impact members of certain national-origin
groups);
• standards relating to arrest and conviction
records (which may adversely impact members of certain
racial and ethnic groups); and
• standards relating to history of garnishment
(which may adversely impact members of certain racial
and ethnic groups).
Remember, an employer can still make use of such
criteria if it can show that the qualifications measured
are necessary for successful performance of the job.
Advertising the Position
In order to attract the most qualified applicants
or employees, ads and job descriptions should avoid
words that suggest the employer prefers applicants
of a particular race, sex, religion, national origin,
age, or other protected trait under the relevant
state or local law. For example, an ad that employs
the phrase “recent college graduate” instead
of “college degree required” could
imply a preference for young people and discourage
older applicants from applying. Likewise, using
the term “salesman” instead of “salesperson” could
suggest that only men should apply.
Employers should also use care when deciding how
to disseminate information about available jobs.
The method an employer uses to get out the word about
job openings can create problems if that method has
the effect of foreclosing certain classes of applicants.
Employers can avoid problems by disseminating news
of job openings as widely as possible. Placing ads
in newspapers and magazines with wide circulation
bases and using employment agencies or state job-service
divisions can help employers reach a wide variety
of qualified applicants.
Interviewing Applicants
The Americans with Disabilities Act prohibits an
employer from asking any questions relating to
the applicant’s physical or mental health.
Questions that seek such information either directly
(such as “Do you have any health problems?”)
or indirectly (such as “Have you ever filed
a claim for workers’ compensation?”)
are forbidden. Rather, employers should ask all
applicants if they can perform the essential functions
of the job. For example, if the job requires sitting
down for eight hours a day, the application should
ask whether the applicant is physically able to
meet that requirement.
The National Labor Relations Act prohibits any questions
about union membership or activities. For example,
questions such as “Do you belong to a labor
organization?” or “Have you ever participated
in a strike?” are against the law.
Employers should take careful notes during interviews.
Besides being helpful in defending hiring decisions
if they’re challenged in the future, keeping
accurate, job-related interview notes improves the
quality of the selection process. However, employers
only write notes that pertain to an applicant’s
ability to perform the functions of a job.
Reference Checks
Both federal and state laws regulate the ability
of employers to request references and other information.
Reference checks that unnecessarily request private
information or use unreasonable methods to gather
data may subject an employer to liability for invasion
of privacy, though such liability is admittedly
rare. As a rule, when conducting reference checks,
employers should inquire only about issues relating
to an individual’s past work performance.
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