Prevent Legal Problems in Hiring

          The hiring process can be as nerve-wracking on the employer as the applicant. One of Murphy’s laws of recruiting is “The ideal candidate – isn’t.”

Employers often receive embarrassingly bad resumes. Have you ever seen any as flawed as these actual resume excerpts compiled by Accountemps?

“Here are my qualifications for you to overlook.”

“Thanks for your consideration. Hope to hear from you shorty.

“I am a great team player I am.” (And I do not like green eggs and ham!)

“I have lurnt Word Perfect 6.0, computor and spreadsheat progroms.” (But has yet to master the spell check.)

“Received a plague for Salesperson of the Year.”

As an employer you probably dread the hiring process even if you get resumes that look better than these examples. But you can streamline the process to assure better hiring and minimize your legal exposure.

Every employer knows that there are legal risks in the hiring process. Most of these risks come from asking illegal questions in the interview. As an employer you probably even have a list of questions that you can and cannot ask an applicant. But successful and risk-free hiring starts long before the interview with a review of the job description, a good advertisement and a well-written application.

            Job description:  This is the single most important part of proper hiring. It is almost impossible to find the ideal candidate if you don’t even know what the job involves. You should not undertake the hiring process without having a written description of the open position and the qualifications required of an applicant for that job.

How do you write a job description? Use a form description as an outline. When the Americans with Disabilities Act went into effect, lots of resources with form job descriptions became available. Then tailor the form to the job by quizzing the employee leaving that position about the actual duties performed. Ask the supervisors of that position what qualities are needed.

            Advertising: When you advertise your job opening, whether in the newspaper, a trade publication or on the internet, use your job description to focus only on bona fide job qualifications in the ad. Use neutral language and specify that you are an equal opportunity employer.

            Advertise specific educational or technical requirements to screen out unqualified applicants. Stick to these advertised qualifications when screening the applicants. If you don’t get any resumes with these qualifications, advertise again with your lowered requirements. That way you avoid the taint of discriminating against lesser-qualified applicants who may be minorities or disabled.

            Applications:  If you use a standardized form as your application, pull it out of your file right now and see if it contains any of these problems:

1.    It should not ask for the applicant’s date of birth.

2.    It should not ask whether the applicant has ever been arrested (it can ask about convictions).

3.    It should not ask the applicant’s gender.

4.    It should not ask if the applicant is a U.S. citizen (it can ask if the applicant is authorized to work in this country).

5.    It should not ask any health-related questions, including inquiries into prior on the job injuries.

6.    It should contain a disclaimer saying that the application is not a contract of employment, that the information on the application is subject to verification and false information is grounds for not considering the applicant or for terminating an employee.

7.    It should state that the applicant, if the job is offered and accepted, will be an employee at will and subject to termination at any time for any reason.

8.    It should contain a clause getting the applicant’s permission to check references and background and a waiver of liability for checking those references.

9.    It should have a place to be dated and signed by the applicant.

If your application doesn’t comply, throw it out and find or create one that does.

Have every applicant fill out the application, whether they send a resume or not. This allows you to get them to sign the valuable disclaimer language in the application.

Review every application and resume carefully for omissions and misrepresentations. Some studies show that as many as one-third of the job applicants misrepresent the facts on their resumes.

Look for gaps in employment or vague information, such as listing employment only by years and not months. Be suspicious if college work is listed as courses rather than degrees if a degree is required for the position.

Don’t accept the name and number of just one contact at a former employer. This could be the only person at the former company that will say nice things about the applicant.

The best way to prevent becoming a victim of resume fraud is to verify all information on an application through references and background checks. Never accept an applicant’s word that he has a particular license or degree. Check with the licensing board or school.

            If you decide to run a criminal background check on the applicant through a third-party investigative service, check with your employment attorney to assure that you are complying with the stringent notice provisions of the Fair Credit Reporting Act in doing so.

            After you have properly advertised, received resumes and applications, and checked on the backgrounds of the promising recruits, you are finally ready to start the interview and hiring process.


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