HR professionals or other hiring managers need to have best practices in order comply with employment laws, one of the most complex legal areas. The dilemma is that poor decisions may impact a company for years to come. Decisions that violate, or appear to violate, employment laws could lead to untold legal costs and/or liabilities. Controlling the hiring process saves time, money and anguish, so employers often look to internal candidates or employee referrals before “going public.” That is why we bring you this first part in a new series on best hiring practices.
- For certain positions, Do NOT only post online.
It is best to use traditional print media as well. By only posting online, not only do you narrow your field of applicants, but in some cases this might be seen as discriminatory towards those who have no means to access cyber ads. Not everyone looking for a job has internet access, and some jobs have no requirement for using the internet either.
- A reasonable job description.
If an employee cannot do the job (i.e. “meet the essential job functions, with or without a reasonable accommodation”), then you, as a manager, will be justified in not hiring them. A job description should cover all of your important employee’s tasks. When advertising, state that an employees “duties include,” and give them a full description at or before an interview, or upon hiring. Employees with vague job descriptions can have stronger wrongful termination claims if fired for not doing their job. We’ll talk more on the process of terminating employees from both employers and employees perspectives at a later date.
- State that all applicants will be considered and that you are an equal opportunity employer.
You should state that you are an Equal Opportunity Employer. As an employer, you are looking out for your business’ best interests, including compliance. There are laws like the Age Discrimination in Employment Act (ADEA), the ADAAA (protecting those with disabilities), and USERRA (protecting our military from discrimination) protecting people from almost every angle. In particular, it is illegal for an employer or employment agency to use advertising which, “directly or indirectly”, expresses any limitation, specification, or discrimination (e.g. race, color, religion, national origin, sex, sexual orientation – except those whose orientation is minor children – genetic information, ancestry, or transgender status) unless based on a bona fide occupational qualification (BFOQ). G.L. c.151B, § 4(3).
A “BFOQ” is a job requirement considered reasonably necessary to the normal operation of a particular business. For example, a college that is set up to be of one denomination may lawfully require the teaching faculty and the student body to be of the college’s religious affiliation, but membership in that faith would not be considered a BFOQ for secretarial and janitorial positions.
As the U.S. Equal Employment Opportunity Commission (EEOC) notes, “it is illegal to make employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual’s genetic information.” Discrimination due to marriage or association to someone of the above categories, is called associational discrimination, and is a hot topic today. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
Employers are required to post notices to all employees advising them of their rights under the laws the EEOC enforces, and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading. Many states like Massachusetts and some municipalities also have protections against discrimination and harassment based on sexual orientation, status as a parent, marital status and political affiliation as well as the other forms of discrimination discussed above.
In our next posting about the hiring process, we will discuss job application forms. There are a number of specific legal requirements about what may and may not be on an application.