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Hiring Compliance Guidelines

Jerome Bennett

Introduction

This paper is intended to provide guidance on how to conduct the process of hiring a new employee in compliance with all of the various employment laws and regulations that apply. The emphasis is on federal laws, but state laws that apply to your location are likely to be found. This paper was developed from a layman’s perspective and is not legal advice. Should you encounter a situation or question on this subject, you should contact your legal department or corporate counsel.

Definition

The hiring process normally begins with the need to add a person to the staff from outside of the organization and ends after the newly selected employee has completed all of the new employee forms and any new hire orientation (general and department specific) and starts to perform the functions of the position. There are exceptions (e.g., temp-to-hire, performance of job functions as a pre-employment test of ability to perform) but this definition should describe the hiring process as the term is used in this paper.

Federal Employment Laws

The following federal employment laws bear upon the hiring process:

Title VII of the Civil Rights Act of 1964 (15 employees).
Civil Rights Act of 1991 (15 employees).
Equal Pay Act of 1963 (all employers).
Employee Polygraph Protection Act of 1988 (all employers).
Executive Order 11246 (federal government contractors/subcontractors).
Americans With Disabilities Act (ADA) (15 employees).
Fair Credit Reporting Act (all employers).
Immigration Reform and Control Act (all employers).
Uniform Services Employment and Re-employment Rights Act (USERRA)
(all employers).
Vietnam Era Veterans Readjustment Assistance Act (federal
contractors/subcontractors, contracts of $25,000 or more).
Fair Labor Standards Act (FLSA) (all employers).
National Labor Relations Act (all employers with a union and some
requirements without a union).

In addition to these, there are typically state laws that address similar subjects. They may be the same as federal laws, they may be less restrictive or they may be more restrictive. This information is available from the appropriate state agency and/or on the state’s web site. Your company may also have policies on these subjects. If you believe that any company policy is in conflict with a state or federal requirement, you should address that with the company executive responsible for the policy.

Determining Openings/Vacancies

Begin to consider compliance issues with regard to hiring when your organization determines that there is a position available to be filled. This is when the preparation and planning for later activities begin. For example, the ADA prohibits discrimination against qualified applicants with disabilities. Whether or not an individual is qualified depends upon his/her ability to perform the essential functions of a job, with or without reasonable accommodations. Determine the essential functions of the job when defining the opening/vacancy (before beginning the interview process). To do so later could be perceived as an attempt to exclude specific, known candidates who are protected by the ADA (or some other employment law).

Determination of essential functions is typically a part of developing the job description. A job description normally is developed for any newly created position. If the organization does not use job descriptions, the document can be a job specification developed for the search at hand.

Another useful purpose of the listing of requirements, duties and essential functions is to evaluate the appropriate pay range. Establishing the pay range in advance of the search serves to help you comply with the Fair Labor Standards Act (FLSA). The pay decision process should include a decision on classifying the job as an exempt position or a nonexempt position for FLSA purposes and establishing a rate of pay at or above the federal (or state, if applicable) minimum wage. Organizations usually have established pay ranges for all jobs, and the new position will fit into an established range.

Accepting Applications

If the organization wishes to limit the number of applications received (perhaps fearing being inundated with applications), set a date as the cut-off point for accepting applications. Include this information in advertisements. If you choose to set a cut-off, all applications received after that point must be excluded. Don’t try to be selective. Resumes or other forms of application received after the cut-off point should be returned with a letter stating that they are not considered applicants.

Document all parts of this procedure, with the thought that some outside agency or a court of law may have reason to scrutinize your process in the future. Such documentation of prudent planning and execution may keep you out of court.

Recruiting Activities

Plan ahead and document your plan, highlighting your good-faith efforts to comply with all employment laws. It is customary for companies to advertise in the newspapers, professional periodicals, on the radio or on television. Language used in all advertisements for candidates must be strictly job related. Do not specify that an applicant must be a certain gender, within an age range that excludes people 40 years old and older, must be of a certain height or weight or be able to perform functions or activities that are not required for the job. You also may not exclude persons with military obligations or who could have military obligations. These requirements describe some of the “protected classes,” those people who are protected from discrimination by federal law: Title VII, Executive Order 11246, the Veterans Re-employment Act, the Vietnam Era Veterans Readjustment Assistance Act and the Age Discrimination in Employment Act. All advertisements for employment should include a statement that the company is an Equal Opportunity Employer. One form used to communicate this is by the abbreviation E.O.E./M/F/H/V. Loosely translated, this means that this employer is an Equal Opportunity Employer and qualified minorities, women, people with disabilities and military veterans are encouraged to apply.

When an outside referral service is used (state employment service, private search firms, minority or women’s organizations, local churches, etc.), the company should communicate, in writing, to these services that the company is an Equal Opportunity Employer. This communication should be sent on some periodic basis (annually, semi-annually, etc.) to agencies that may be used to assist with the search for applicants. As with other recruiting/hiring tasks, this should be documented for company files, preferably by retaining copies of such letters. If this information is communicated orally, a note should be made and placed in the file.

It is important to remember that the Vietnam Era Veterans Readjustment Assistance Act requires that all openings to be filled from outside (except executives and top management jobs) be advertised with your state employment service. This requirement is for qualifying federal contractors/subcontractors.

Application Phase

All applicants should be required to complete the official company application form. The information collected on this form is the minimum information necessary to assist with the hiring decision. To accept less (perhaps just a resume) from some applicants but then to insist that others complete the application could be construed to be discriminatory. Most people understand that you cannot ask an applicant about his/her age, race, religion, marital status, disabilities, arrest record or gender (or any non-job-related information). However, we still see some standard application forms with such information requested.

The application form should include a waiver or release to allow the company to check references. It is sometimes easier to get former employers to respond if applicants are asked to sign a separate form that can be faxed or mailed to prior employers for reference checks (or school history checks or personal reference checks). If references are checked on any applicant they must be checked on all applicants.

Some employers like to obtain a credit history on applicants to assist them in the selection process. If this is done, remember that the Fair Credit Reporting Act requires that the release signed by the applicant for this purpose must be a separate release and specifically for that purpose. Credit checks should only be performed for those jobs where the information is relevant to the duties of the open position.

Besides ensuring that the application form itself doesn’t ask for information that may be discriminatory, it is important to include a statement on the application form that all employment relationships are “at-will.” It must be clear that either party may terminate the employment relationship for any reason or no reason at any time. The application form should have a separate page for applicants to voluntarily and confidentially self-disclose their veteran status. This should be done on a document that is kept separate from the application form and any documents that will be used for the hiring decision. If there are five or more employees at the company, compliance with the Vietnam Era Veterans Act requires this documentation.

Interviewing

Just as you cannot ask certain questions on an application form, you may not ask questions in the interview that would elicit that information. Your questions are best kept to those issues that are job related. This is a partial list of questions that may be considered discriminatory and should be avoided:

Q Original name of an applicant.

Q Maiden name.

Q How long have you lived at your current address?

Q Do you own your home?

Q Where were you born?

Q Birthplace of parents or spouse.

Q Require birth certificate, naturalization or baptismal records.

Q When were you born?

Q How old are you?

Q Date of high school graduation.

Q Questions about religion.

Q Race, complexion of skin or attitude about working with co-
workers of different race.

Q Requirement of a photograph.

Q Questions about physical characteristics (i.e., weight,
height, color of hair, etc.).

Q Marital status.

Q Presence of children or intention of having children.

Q Gender.

Q Any medical information or questions about use of workers’
compensation benefits.

Q Citizenship (may ask about legal right to work in the United States
but this will be addressed later).

Q Lineage, ancestry or national origin.

Q Dates of military service or if receiving veteran disability pension.

Q Listing of clubs, societies or lodges where applicants have
membership.

Q Do you belong to a labor union?

Q Do you own a car?

While you may not ask questions about disabilities, you may ask all applicants how they would perform the essential functions of a job.

Whatever appropriate questions are asked of any candidates should be asked of all candidates. A structured interview will lead to that result. Consider writing a list of questions to be asked of all candidates to help you maintain the consistency of questions.

Testing and Evaluating Applicants

Pre-employment tests to be used to assist with the selection process must be strictly job related and certified for validity and reliability.

Tests that usually stand the scrutiny of applicability are typing tests and shorthand tests for secretarial/clerical positions. Before testing begins, ensure that the position being filled actually requires these skills and determine the desired level of performance of the skills.

It is recommended that more than one person interview applicants for employment and that those performing interviews attempt to arrive at a consensus as to the rating/ranking of applicants. Some form of quantitative ranking is more defensible than subjective ranking. A qualitative system may also provide a way of comparing applicants. Whatever approach is used, there is value in using some systematic method where all applicants are evaluated in the same way on the same (job relevant) items.

The ADA uses the terms pre-offer and post-offer to distinguish when an employer may collect certain types of information on applicants for employment. Basically, an employer may not require a medical examination or medical information until after an offer of employment is made. This does not apply to drug screening, which may be done pre-offer. It is probably more effective to do such screening at the time of the first interview, without advance notice, rather than to schedule it.

New Hire Intake Process

Now that the selection for hire has been made and the candidate has accepted the offer of employment, the process of officially bringing him/her into the company begins. This is an important phase in the process of hiring a new employee. It provides new employees with their first impression of the company and can have a great influence on the rest of the person’s career there.

It is also your opportunity to start people out on the right foot with regard to compliance with the many laws that affect the employment relationship. The orientation program should include training on sexual harassment, violence in the workplace, ADA compliance, the Family and Medical Leave Act, company policy on discrimination and harassment of any type and OSHA compliance (company safety policies), to name a few. Any corporate policies of your organization should be referenced when addressing these subjects.

This is another opportunity to collect information regarding the new employee’s veteran status. Regulations call for the collection of such information in the application phase but the disclosure of veteran status is to be voluntary at that phase. This is an opportunity to better perfect your statistics. This information is used on the VETS 100 report that the federal government requires annually.

Form I-9 must be completed as a part of the intake process for new employees. The Immigration Reform and Control Act requires that this document be completed within three days of hire. There are specific documents that are acceptable by the Immigration and Naturalization Service (INS) and no other documents may be substituted. The company representative responsible for completing the I-9 is required to examine the original documents being presented by the new hire and record the information that is pertinent to the I-9. I-9 forms collected from new hires are to be retained separately from the employees’ personnel files.

Summary

This document is intended as a guide to compliance with the various laws that have an impact on the hiring process. While there are a number of fairly specific references, it is not intended to be all-inclusive. Remember, anyone involved in the hiring of new employees should be aware of the various compliance issues throughout the process. Direct any questions on employment law to an attorney.

Articles

Finding Candidates

Interviewing Basics

Interviewing Best Practices

Laws & Documentation

Line Manager / Recruiting Partnership

Post-Interview

Pre-Planning & Retention

Reading the Candidate

Recruiting Basics

Recruiting Best Practices

Useful Links