Employers really are struggling for ways to more effectively search for and hire new employees. The challenge is being made more difficult by the ever-increasing legal restrictions placed on what the employer can say and do during the hiring process. For example, Massachusetts, New York City and Philadelphia recently enacted legislation prohibiting inquiries about an applicant’s prior wage history — a common question.
Employers want to get as much information about a candidate as possible, but state and federal discrimination agencies are trying to severely limit the information collected. This is why 46 percent of all new employees don’t work out — ineffective and inefficient hiring processes coupled with a lack of quality information about the candidate. So, enhance your hiring process by at least doing the following:
• Determine the company’s actual needs;
• Create a comprehensive job description;
• Advertise the position broadly;
• Utilize a thorough job application tailored to your company and applicable law;
• Screen applicants;
• Interview selected applicants effectively;
• Perform pre-employment screening/testing;
• Offer the job in writing; and
• Utilize employment agreements with confidentiality and non-competition provisions where appropriate.
Here are some do’s, don’ts and steps to take in the hiring process:
- Start with a comprehensive job description which accurately reflects the duties (essential and non-essential), responsibilities and job requirements, and also use it as a benchmark for performance after the candidate is hired.
- Make sure your job advertising is non-discriminatory and published in many places to reach all classes of individuals. Avoid terms like “salesman wanted,” “recent grad desired” or “must have car” — all considered to infer discrimination.
- Have a completed employment application which has all the appropriate waivers and disclaimers — insist on it being fully completed, signed and dated. It is okay to accept a resume, but resumes are carefully drafted to say positive things and omit the negatives. Review the application and any resume carefully for any gaps in time (was the gap caused by time spent in the penitentiary?). Go over the application in detail with the applicant at the outset of the interview. Make notes, but be careful what you write on the application — it could be “Exhibit A” in a discrimination case. Does your application ask for veteran status, prior arrest activities or workers’ comp claims? These and other questions are prohibited under various circumstances.
- Check all references — most employers are reluctant to contact references. Consider having the employee sign a release to keep the reference checks immune from liability. If the applicant has acquaintances in your organization, speak with them. Get the name and cell phone number of the applicant’s immediate supervisor and call the supervisor directly — bypassing H.R. Remember that the Fair Credit Reporting Act (FCRA) stringently regulates third-party background checks and requires an employer to jump through several procedural hoops. Have your FCRA packet prepared.
- Consider personality profile, aptitude and psychological testing for important jobs — employers are using these types of testing more frequently than ever before to ascertain the ability to achieve, dedication, willingness to learn, compatibility, leadership skills, incentives, team spirit and many other factors that can spell success. Remember, the time at which a psychological test is performed can cause a violation of the Americans with Disabilities Act. The job would first have to be conditionally offered. Selective testing can also expose an employer to Title VII discrimination. Most importantly, remember all of these tests must be job related.
- Be brutally honest in the interviewing process about the job and your company so that an applicant’s expectations are not unrealistic — show the applicant the actual work environment when possible.
- Interview in a team of two so that you have more than one perspective. Listen first and talk later — don’t explain in detail what you are looking for in an applicant until the applicant talks to you about what he or she has to offer.
- Put the terms and conditions of the job offer in writing so there is no misunderstanding. But, have only one qualified person in charge of issuing these letters. Any wages or benefits mentioned should be qualified as subject to a change. An at-will statement should be included as well.
- Retain the application information for at least one year from the date it is created or from the date you take action on the application — whichever is longer — this is a legal requirement.
Remember, you invest a lot of time, effort and money in new employees so you want to hire the best applicants to ensure a successful employment relationship. For a complimentary copy of “15 Questions to Ask Job Applicants” and the PowerPoint presentation entitled, “Effectively Hiring New Employees,” contact Bob Dunlevey at email@example.com.
Bob Dunlevey is a board-certified specialist in labor and employment law.