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The best hiring practices to remain compliant


Hiring a new employee can be an exciting time for your company. New employees can help bring new initiatives to life, rejuvenate old processes and add new experience to the mix.

In the midst of all the possibility, it’s easy to let compliance play second fiddle. But the hiring process has to be a careful dance. It’s full of technical moves, and your business can’t afford to miss a step.

So how can you ensure you’re using the best hiring practices as you recruit talent?

A defined hiring process can help you to strike a balance with the letter of the law.  From the job description to the job offer, here’s what to consider as you outline the process.

Developing your job descriptions

Think of a job description as an opportunity. Even when you’re hiring for a position due to turnover, the job description provides a chance to adapt or change the role to fit your company’s current needs.

1. Determine job requirements

When you consider your best hiring practices, start with a needs analysis. For example, what type of education is needed? In lieu of education, is there a certificate program that’s useful? Is there an amount of experience that’s needed? Does industry knowledge help? What software programs are necessary to do the job?

And what do you need this position to do? It doesn’t mean other duties can’t be included – but what’s essential and what’s not? For instance, is it really necessary for the employee to regularly lift 20 pounds or more? If not, this could be included as a nonessential duty.

Knowing what’s essential and what’s not makes it easier to stay in compliance with the Americans with Disabilities Act. This act prohibits qualified candidates from being disqualified for a position based on a disability, if they’re able to perform essential functions of the job with reasonable accommodation.

2. Classify as exempt or nonexempt

Now, define the exemption status for that role. This is crucial because, in a nonexempt position, employees are entitled to overtime pay – typically 1.5 times their regular pay rate. If misclassified, employees who work unpaid overtime may be entitled to back pay and other damages.

Exemption status is increasingly scrutinized by the Department of Labor. Paying a salary is not the sole determination of whether a position is exempt. To properly classify an employee, look to the requirements from the Fair Labor Standards Act for guidance.

Interviewing your candidates

Twenty percent of hiring managers said they have asked a question in a job interview only to find out later that it was illegal to ask, according to a 2015 CareerBuilder study. That’s just one area where businesses go wrong in their best hiring practices. How can you do better?

1. Be consistent

To avoid discrimination claims, treat every applicant consistently.

For example, if you begin with a phone interview followed by an in-person interview, the same interview path should be followed consistently for all candidates who make it to the next round of interviews. In other words, don’t skip the phone screen just because the candidate graduated from your alma mater.

Likewise, ask every candidate the same questions. Focus on open-ended, behavioral interview questions to get your candidates talking about specific skills and demonstrate how they’ve performed in a similar role.

For example, “Tell me about a time you had to deal with an angry customer. What did you do?”  Behavioral questions allow prospective employees to tell you what they have really done, not what they would do if you hired them.

You can also ask some nontraditional – yet, not illegal – questions to open up conversation. Questions like, “What emoji best describes your work style?” simultaneously help to break the ice, while providing more insight into how the candidate would fit into your company’s culture.

2. Avoid these questions

As you develop your questions, keep in mind that some questions could be construed as discriminatory. Here are a few you shouldn’t ask:

  • Where were you born? Are you an American citizen?
    Instead, ask if the candidate can verify his or her eligibility to work in the U.S.
  • Would your religion prevent you from working weekends and holidays?
    Instead, explain that the job requires weekend and holiday availability, and ask if they can work this schedule.
  • Are you disabled?
    Instead, ask if they are capable of performing the position’s essential job functions.

3. Write objective interview notes

If an applicant files a discrimination claim, any notes related to the interview can be used as evidence. Thus, when interviewing and screening, only write notes that are factual, job-related and not opinion-based.

For instance, even if it’s your opinion, avoid writing these types of comments: “This person was laid off from their last job, so they’re probably incompetent. It’s always the incompetent people who go first in a layoff.”

A better note would simply say: “The applicant was laid off due to downsizing.”

Running background screenings

Once you’ve completed your interviews, you’ll want to conduct background checks, as appropriate.

The same theory on consistency applies here:  Perform the same types of screenings on all candidates. For example, if you run a credit check on one person, you need to run it on all other candidates as well, provided it’s necessary for the job.

Remember, courts have ruled that certain background checks may have an adverse impact on certain demographics.  “Adverse impact” refers to employment practices that appear neutral, but have a discriminatory effect on a protected group.  So, unless you are hiring someone who is working directly with money, it may be best to skip the credit check.

Also, bear in mind that all aspects of background screenings – not just credit checks – are subject to local and state laws, along with the Fair Credit Reporting Act (FCRA), if the background check is conducted by a third party. The FCRA requires applicants be given the opportunity to correct or challenge any negative information discovered in a screening.

Making an offer

Go ahead – share the news of the job offer over the phone. This is a much warmer delivery than via email and well within the confines of the law. It’s also a great opportunity to help make the candidate feel valued.

Follow up a phone conversation with a written offer, developed on a templated offer letter to help ensure your message is consistent to all candidates.

Some words of wisdom as you develop your offer letter:

  • Note that the offer letter is not a contract, and include an at-will employment disclaimer.
  • State the rate of pay according to pay period rather than annualized to avoid potential contract claims.
  • Provide the job title and who they will report to, along with the office location.
  • You may choose to leave out benefits information, as this information can change over time.

Welcoming your new employee

Once your new hire is on board, keep in mind that onboarding is the vital final step to the recruiting process. Your demonstrated behavior should continue as your new hire gets acquainted.

Want to learn more about how to overcome common pitfalls and recruit the best possible talent for your business? Download Obstacles to Hiring: How to Overcome Nine Common Challenges, to learn more.