Successful hiring and retaining of top-notch employees is often the key factor distinguishing a thriving business from a failing business. Employment represents one of the most important investments of time, training and resources many businesses face. However, as most people know, the hiring process is a highly regulated area of the law. In today’s environment, business owners can ill afford to hire the wrong people or face hiring-related litigation. This article provides general hiring guidelines for business owners who are in a non-union setting.
As a first step, employers should take the time to carefully create an accurate and complete job description which is tailored to the specific nature of the job. The investment of time and effort up front will allow employers to determine pre-screen applicants to determine who should receive a “no thank you” letter, who should receive an informational telephone interview, and who should make the short list and receive an immediate interview. The key to creating an effective job description is to list in a specific fashion the skills, knowledge and experience required for the four to eight most important job functions. The most effective job descriptions contain three elements: the education and experience threshold required for the position; the technical skills necessary to do the work; and the traits and habits required to succeed long-term.
When employers receive applications, whether by traditional methods or through on-line sources, they must comply with the recordkeeping requirements of such laws as the Age Discrimination in Employment Act, Americans with Disabilities Act and Title VII of the 1964 Civil Rights Act, which (among other things) require employers to retain employment applications for one year. This requirement represents a significant burden for firms which receive hundreds or even thousands of applications each year, often from multiple sources. Employers should control the hiring process and discourage employees from posting openings or receiving applications from individual sources such as Facebook. Finally, employers should shut down ads immediately after the position is filled in order to cut off the timeline for legal record-keeping requirements.
Employers should carefully formulate the questions they ask applicants in the pre-screening and personal interview process. Questions should focus on past performance and the requirements listed for the job opening. Pre-formulated and follow-up questions should relate to the skills and knowledge required for the job and should not delve into the areas of lifestyle or personal habits. Every question should be designed toward eliciting information that will demonstrate the applicant’s ability to successfully perform the job. Employers should avoid interview questions that will not demonstrate the applicant’s qualifications and ability to do the job.
From a legal standpoint, employers should not ask questions in the areas of protected classifications, which can lead to discriminatory hiring claims. Interviewers should not ask questions related to an applicant’s (1) age except to verify a minimum age requirement; (2) race, including asking particular questions only to members of a certain race or color; (3) sex, including questions which only apply to males or females (for example, do not ask “Do you plan on having children?”); (4) sexual orientation; (5) marital status; (6) disability; (7) religion, including mention of the employer’s own religious beliefs or customs; (8) union affiliation; (9) worker’s compensation filings; (10) military service or status; (11) membership in organizations which may reveal the applicant’s protected status; or (12) national origin or place of birth, although you can ask for proof that the applicant is eligible to work in the United States.
Interviewers should avoid informal conversation during the interview. Even seemingly innocent questions and informal small talk can stray into dangerous legal waters. For example, a question such as “My sister attended that school also, what year did you graduate?” may disclose information in a protected classification (age, in this case), which can lead to claims for discriminatory failure to hire. As much as possible, interviewers should stick to the script in order to obtain the information that is central to the goal of hiring people who have the education, experience, knowledge, skills and personal traits which will help the business succeed over the long term.
• Chad Mihevc is a partner with the law firm of Flores & Mihevc LLC based in Deerfield and McHenry, and can be reached at chad@floresmihevc.com. Flores & Mihevc focuses on business law, commercial real estate and banking law.
