Hiring and Recruiting
Companies become subject to a number of employment laws as soon as they begin the process of searching for a new hire. How and where to look for employees, what to say in want ads, what questions can be asked during the interview process, what steps need to be taken to bring an employee on board, and other similar actions all need to be undertaken in compliance with applicable employment laws. Federal, state, and local anti-discrimination laws mandate that hiring and recruiting actions be taken without regard to an applicant’s protected characteristics, such as his or her age, race, nationality, and gender. To avoid costly lawsuits, it is important for employers to understand the extent of their legal obligations when hiring and recruiting.
Pre-employment inquiries (Application/Job Ads/Interview)
In order to find the best fit for an open position, it is natural for an employer to want to learn as much as they can about potential new hires. Applicants are questioned and references are contacted in order to obtain information that allows a company to identify and select their ideal candidate. Certain inquiries, however, when asked in an interview or written on a job application, can run afoul of discrimination laws and other pre-employment protections. Understanding what can and cannot be asked or requested in the hiring process is key to avoiding pre-employment lawsuits.
Background Checks/Drug Test/ Medical Tests
Employers often utilize a variety of pre-employment tests to evaluate an applicant’s suitability for a job. Typing, computer proficiency, machine operation, drafting ability, and similar, job-specific skills tests that allow employers to examine the pertinent abilities of potential employees are generally legally permissible. However, tests that address factors other than objective skills, such as personality tests, drug tests, medical tests, and background checks, are governed by numerous laws to both protect applicants’ privacy and to guard against such tests being used in a discriminatory manner.
Offer Letters and Job Descriptions
When a company has selected the applicant it wants to bring on board as an employee, the company should provide written documentation to that individual which confirms the nature of the job being offered and the expectations of the role. This documentation can in the form of an offer letter, job description, or both. Though usually relatively simple, offer letters do have legal consequences. As a result, it is important for employers to understand what an offer letter should contain. Offer letters should contain all pertinent information about the position being offered so that an applicant can determine whether or not to accept the job. These letters should also contain certain necessary components to legally protect the employer. On the other hand, job descriptions are general overviews of the expectations and responsibilities of a position. While they may seem it, job descriptions are not the same as want ads or job procedural manuals. Each of these documents serves individual and specific legal purposes, and employers need to understand the differences between them.
Our experienced attorneys ensure that our clients understand the actions they need to take during the recruiting and hiring processes in order to put their businesses on secure legal ground. Doing so helps prevent potential lawsuits from candidates claiming that the application process was somehow discriminatory or otherwise improper. We help draft important documents as well as provide all necessary guidance to best protect our clients during the hiring and recruiting process. Our actions include:
- Providing training for management on hiring and recruiting basics, including appropriate pre-employment inquiries
- Drafting job application forms, offer letters, job descriptions, and other hiring and onboarding documentation
- Providing phone and email guidance on the actions that need to be taken during the hiring, recruiting, and onboarding processes
- Providing phone and email guidance on individual applicant situations
- Reviewing background check processes to ensure clients are protected, and providing guidance when reports with red flags are returned
- Providing legal reviews of client documentation and suggesting edits to update and strengthen the client’s protections
- Providing advice on reasonable accommodations that may need to be made in the hiring process
- Assisting in the creation and implementation of a values statement, which outlines attitude and behavior expectations as well as providing additional standards to use in the recruiting process
Our skilled attorneys are experienced in defending companies against a litany of claims that can grow out of the hiring and recruiting process. Our hiring- and recruiting-related litigation and advocacy services include:
- Defending against employee claims that an applicant was improperly passed over for hire brought against businesses in state and federal courts and agencies
- Addressing discrimination of all types alleged to have occurred in the hiring process, including but not limited to age, race, religion, gender, disability, and national origin discrimination
- Addressing other issues, such as those arising out of criminal background information or failing to reasonably accommodate a job applicant
- Representing your company in alternative dispute resolution forums, such as mediation or arbitration, to resolve hiring claims efficiently and cost-effectively