Beware! 5 Potential Legal Landmines Every Recruiter Needs to Sidestep

By Irelis Arias

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As a corporate recruiter or hiring manager, your focus is clear: to secure the best person for the position. This is a multi-faceted process that involves many functions, including sourcing, screening and selecting. But with your “eye on the prize” and your feet firmly planted on the path to successful hiring, you may inadvertently step into some legal landmines.

Don’t get caught off guard. Avoiding some of the more explosive legal issues involves equal parts awareness and action. With a better understanding of the risks and some simple compliance tactics, you can stay on the right side of the law with every new recruit.

Here’s where you need to be careful:

1) Making job-related promises you can’t keep – It’s understandable that you want to present the employer and the position in the best possible light to a potential candidate, but if you misrepresent either, you could get into trouble. If the candidate accepts a position based on information that is misleading or later proven untrue, he or she could turn around and sue you. In certain lawsuits, courts may consider promises you made in the recruitment process to be an “implied contract.” As such, if you break the promise, you’ve broken the contract and could be liable for damages to the employee.

Risk-free recruitment tactic: Avoid any statements that imply length of employment or that guarantee long-term or continued employment. Instead, emphasize the “at-will employment” doctrine, which permits an employer to dismiss an employee for any reason (or “without cause”) and without warning. Be especially careful about inflating the health of the company, the level of the position or opportunities for advancement.

2) Using discriminatory terms in job descriptions and advertisements – The wording of a job description or ad can’t show preference based on sex, national origin, age, race, disability, religion or color. To do so is a violation of a handful of anti-discrimination federal laws enforced by the U.S. Equal Employment Opportunity Commission (EEOC), including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and the Americans with Disabilities Act. For example, using terms as seemingly innocent as “recent college grad” or “stockboy” could raise a red flag and invite scrutiny.

Risk-free recruitment tactic: When writing your job description or ad, you should emphasize the company’s equal employment opportunity policy, spell out as clearly as possible what the job involves (including minimum qualifications and essential job functions) and avoid any suggestions of discrimination by avoiding terms that imply favoritism toward certain types of candidates or dismissal of others. Problematic ads describe a type of person, rather than a type of job.

3) Applying pre-employment testing haphazardly – Testing job applicants – from entry level to executive – can be extremely helpful in narrowing the hiring pool. But you can’t just make up a test and offer it randomly. Testing is carefully governed by various laws and regulations, including the federal government’s Uniform Guidelines on Employee Selection Procedures. Under these guidelines, an employment test (as part of the selection process) can be considered discriminatory if it favors people of a certain race, sex or ethnicity, and unfairly impacts other groups.

Risk-free recruitment tactic: To stay on the right side of the law, only test for skills or traits that are directly related, and necessary, to the job. Take the time to define what you want to measure, and why you want to measure it. This will vary, for example if you’re hiring for a position in the financial and banking industry vs. warehouse shipping and receiving. To help you figure out what to test, identify the job’s primary tasks and duties and rank them by importance. Also, make sure you give the same test to every person being considered for the same job.

4) Failing to get written permission with background checks – Background checks can help you make a more informed hiring decision, while at the same time ruling out dangerous or unfit candidates. Although a wide variety of background checks are available, the most common are credit reports, driving records and criminal histories. Be aware that if you use an outside source, such as a service agency, software program or Internet resource, you must comply with the requirements of the Fair Credit Reporting Act.

Risk-free recruitment tactic: Inform each applicant if you require a background check for employment – and why it’s necessary for the business (especially for checks other than criminal history). For example, you may need to pull a credit report for a job position that involves handling money, or a driving record for a transportation position. To comply with the FCRA, be sure to get the person’s written consent (via an attorney-approved disclosure and authorization form) before you request a background check. When asking about a person’s criminal background, explain that a previous conviction does not automatically disqualify the applicant, but that the applicant can be rejected if he or she attempts to withhold information or falsifies a previous criminal record.

(On the flip side, did you know an employer who doesn’t do background checks could be held liable for “negligent hiring” should an employee turn violent on the job? This, alone, is a clear argument for background checks, as long as they’re handled properly.)

5) Asking references the wrong questions – Contacting an applicant’s former employers is an essential step in the recruitment and hiring process. But, again, you need to tread lightly. Basically, you can’t ask a reference any questions you also can’t ask an applicant, including inquiries related to legally protected characteristics like age, race, gender and national origin. There’s risk for the contacted reference sharing the wrong information, as well. Companies that give negative references could invite legal action from former employees who think comments made about them were unfair, untrue, harmful or discriminatory.

Risk-free recruitment tactic: To stay out of discriminatory territory, you should restrict your questions to job-related issues, such as title, wages and dates of employment. Ask for a waiver and release of liability from applicants before checking references. Another point to consider: Check information provided by candidates equally and without discrimination. For example, you could get into trouble for making brief checks on certain applicants while digging more deeply with others.

Irelis Arias is Human Resources Director at HRdirect, the source of practical and affordable HR products and services for smart employers. Follow Irelis on Twitter at @Irelis_Arias.


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