By Dalton B. Floyd, Jr.
Small business owners often must deal with a multitude of daily issues while also working to make financial ends meet. Everything from local, state, and federal taxes – to regulations, licenses, advertising costs, managing payroll and the focus on future growth – can be regular occurring challenges for any business owner. That last one, future growth, is what most small business owners strive toward.
If you are fortunate enough to be hiring new employees for your growing business, you’ll want to be sure that you aren’t taking on a lawsuit at the same time.
One way to avoid most legal liability related to the hiring process is to maintain a clear focus on the position’s job skills, qualifications, and expectations. This places the emphasis where it should be – on filling the job – and to the extent that your hiring decisions are based upon job-related criteria, thus helping you to avoid most legal pitfalls from the beginning of the process. Decide what qualifications are required for the job, put those qualifications into a written job description, and focus your hiring efforts on addressing these qualifications as objectively as possible.
Federal and state laws prohibit certain types of discrimination in the hiring process. For example, some states have passed laws protecting applicants from discrimination because of sexual orientation, marital status, arrest or conviction records, off-duty use of tobacco products, political party affiliation, and personal appearance. You need to be informed and aware of the employment laws of your state. Since these laws vary from state to state, you shouldn’t hesitate to speak with an attorney if you have any questions.
In order to avoid any claims of discrimination or illegal hiring practices, make the entire hiring process as clear and objective as possible. Do not stereotype applicants in any way. Instead, focus on what the job requires and how each particular applicant matches up.
Advertisements for Job Openings
Don’t state, directly or indirectly, that a job is for one gender or other (no “Gal Fridays Wanted” ads) and don’t engage in age stereotyping by saying you’re looking for a “recent college grad”. Make sure that your job postings will be seen by a wide segment of the population.
Use Interview Checklists
It’s best to be prepared when interviewing applicants. Write down a series of questions that focus on the specific requirements of the job and use the same or similar questions for all of the interviewees that you speak with.
Avoid Questions that Stereotype
The way in which you state your questions can make all the difference in how your applicants interpret your interview process. As an example, while you may wish for some assurance that a potential employee would stay with your company for a few years, how you ask the question sets the tone. Avoid asking a female applicant, “Do you plan on getting married?” or “Do you plan on having children soon?” or even, “Is there a chance your husband could be transferred?” Keep the questions focused on the job with questions similar to, “Is there any reason you might not stay with us a few years if hired?” or “Where do you see yourself in five years?” If you wish to know if an interviewee could be available to work late from time to time, ask them directly without making assumptions about the applicant’s personal life.
Ask Pertinent Questions
If filling the open job position does not require you to ask of know certain questions, then do not ask them. The position is likely to not be affected by the applicant’s religious preference, marital status, age, or how many children that may have. Ask only those questions related to performing the job at hand.
After you have carefully written the job posting and drafted your interview questions, you also must still realize that you can’t make every demand of each applicant that you might want to make. Although the law does not directly regulate requests for employment references – if you unnecessarily pry into private personal information or use unreasonable methods to gather data – you may open yourself to tort liability for invasion of privacy. In other words, you may possibly face a personal injury lawsuit from an applicant. You will generally be safe, however, if you limit your background or reference checks to issues directly relating to the individual’s ability to perform the job in question.
Existing laws do limit the types of tests you may use to screen out unqualified applicants. To be on the safe side, any test you administer should only measure an applicant’s ability to perform the specific job. Tests that are not job-related and that screen out disproportionate numbers of minorities or women have been held to violate anti-discrimination laws.
The Americans With Disabilities Act forbids requiring medical tests of applicants unless you’ve offered to hire the person and you also require all employees who hold the job in question to take such a test. Any information obtained as a result of the test must be kept strictly confidential, in a file separate from the applicant’s personnel file, and it cannot be used to discriminate against the applicant because of the result or because of any disability disclosed by the test.
Hiring employees should be an exciting and optimistic time in your business development. Make sure that you take the necessary precautions to protect your business, because the last thing you want is an unintended (and likely costly) lawsuit.
A top priority of any business should be to minimize the risk of litigation in connection with the hiring of employees. Understanding the basis of the claims that can be made in these situations is the first step in minimizing the risk which will help business owners successfully navigate the seas of hiring employees. The laws generally prohibit employment discrimination in the terms and conditions of employment. Some of the laws include: The Age Discrimination in Employment Act, The Civil Rights Act, The Equal Pay Act, and The Americans With Disabilities Act.
At The Floyd Law Firm PC, our firm is committed to helping large and small business owners. Our experienced business and corporate legal counsel apply practical solutions to a wide variety of business and employment concerns.