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Hiring Hazards: How to Avoid the 7 Most Common Legal Landmines

In this climate of heightened attention and regulatory enforcement, you can’t afford to cut corners when hiring. Strict compliance with employment laws comes into play at nearly every stage – from writing a job description and placing an ad to interviewing and screening applicants.

In our post-webinar Q&A session, Jaime Lizotte, HR Solutions Manager and Shanna Wall, Esq., Compliance Attorney, answers your questions on how to avoid the biggest legal landmines when hiring.​

Watch this free HR webinar on demand.

Transcription

How long should a typical interview last?

An hour or less. The exception is for second or third interviews for high-level jobs. But, as a best practice, I generally wouldn’t go over an hour. This is also an issue of your own schedule. The more time you spend in interviews, the less time you have to focus on other things. You can always call a candidate back again, once you’ve narrowed down your top two or three candidates.

Why do I need an application if I have a candidate’s resume?

Resumes aren’t always complete or clear. Applications ensure uniformity and that all essential information is obtained. But the most important reason is to make sure applicants read and sign important statements and mandatory disclaimers that are part of the hiring process. Always have applicants sign and date the application.

What is the purpose of ban-the-box? Shouldn’t we know if potential employees have a criminal record?

This is a common question. Ban-the-box does not mean you can’t perform a background check on applicants. It just means you can’t ask about criminal records on your job applications. The purpose of the law is to give people who have served their time a better chance at obtaining employment. But you still can perform background checks later in the hiring process before making the final decision. Remember to get written applicant consent before conducting any checks.

Is checking references really important? Most companies won’t answer questions.

You’re right. Because of the chance of an employee lawsuit, companies are reluctant to provide references for former employees. When companies give negative references, they run the risk of exposure to defamation, invasion of privacy or discrimination lawsuits by former employees. So many organizations adopt policies limiting the information they give to title, wages and dates of employment. By the way, that’s a good policy for all companies to have. That being said … checking employment references is still an important step in screening potential employees. Even basic information can help you compare to what you were told by the applicant. If the dates don’t match up or the job title is different, you have the question the honesty of the applicant. And always ask, “Is the individual eligible for rehiring?” That can tell you a lot.

What are my obligations if an employee asks for a reasonable accommodation?

Great question. Under the ADA, employers with 15 or more employees must provide reasonable accommodations to qualified disabled individuals. But there are limitations on how far an employer must go to accommodate someone under the ADA. As a general rule, an accommodation is NOT considered reasonable if it poses an undue hardship on the employer’s business. Undue hardship is determined by several factors, such as cost, the company’s financial resources, and the burden on other employees. So it really has to be considered on a case-by-case basis. I recommend speaking to an HR expert or employment law attorney in these instances.

What happens if you start a job as the HR person at a company and find that the company never did I-9s before?

The first thing you want to do is make sure everyone fills out an I-9 form immediately. And, at this point, don’t worry about the hire date. Just put the actual date the form is being filled out. During an audit, if you are showing good faith and explain the situation and that you remedied a bad one, you could be held from getting any penalties – and I said could, there is no promise. But, at the end of the day, it’s better to have forms to provide the auditor versus not having any.

And if you come across any I-9 forms that you do have in your files that are incorrect, you want to make sure to correct them immediately. And make sure to NEVER use white-out – always just put a line through the incorrect information and write the correct information next to or above it. And you can always attach a note that states the changes you made and why. So it’s always good to audit your I-9 forms on a regular basis to make sure you are not missing anything and if you are, you can correct any mistakes immediately.

Can you ask: Are you a U.S. citizen on the job application?

No, absolutely not. This is the same as the interview. Instead of asking are you a U.S. citizen, you want to ask “Are you eligible to work in the United States?” Remember they don’t necessarily have to be a citizen to be eligible to work in the U.S.; they could have a work visa or alien resident card, etc., which would make them eligible to work in the U.S. but not necessarily a citizen.

Are we allowed to have a separate policy and separate employee handbook for office staff and field employees? As a follow-up on my question, because of the fact that we do not offer any benefits such as vacation and holiday for field employees, is that considered discrimination?

Discrimination is based on treating employees differently based on a protected class. Protected classes, at least federally, are age, sex, religion, national origin, disability, religion, genetic information, for example. So having different vacation policies would not necessarily be considered discrimination. It could be if all your field employees were female or of a different national origin from your office staff, then it could possibly be considered discrimination if your decision to not provide vacation time is because of that protected class. It is not unusual for companies to have different PTO offerings based on employee classifications – exempt or non-exempt – as well. Even though it may not be a discrimination issue, it could be an employee morale issue, so you want to be careful with how you handle and communicate the different policies.

With regard to policies that address unacceptable behaviors, should they also include recourse actions?

The purpose of policies is to set the expectations for your employees, so you should include what the possible consequences are for violating policies. You want to make sure you give possible consequences, not guaranteed consequences. Every situation could be different so leave yourself room for discretion. You don’t want to say, for example, violating this policy will result in termination. Instead, you may want to say violating this policy will lead to disciplinary measures, including termination, at the company’s discretion. The key is, make sure you are applying the policy consistently to all employees.

With regard to the sick days question, if candidate responds yes to attendance requirements and then takes sick days that may seem high to employer, what then?

You would treat this as a possible disciplinary issue. Depending on the policies your company has in place, you could potentially terminate the employee for violating the attendance policy. But terminating an employee because of taking too many sick days can be tricky because you may be entering into other legal landmines. Certain absences may be protected such as need for leave under the FMLA or as a reasonable accommodation under the ADA, for example. Make sure you are complying with all federal, state, and local laws before terminating an employee for absences.

Are you not allowed to ask if you have criminal history in Florida? / I operate on Long Island in New York state. Can we ask, "Have you ever been convicted of a felony?"

Both Florida and New York state do not have ban-the-box laws that prohibit employers from asking the criminal question on a job application. However, some states, such as Florida and New York, do limit the way the criminal question can be asked. In Florida, employers may not ask about sealed or expunged records of convictions or arrests. In New York state, employers may not ask about information concerning proceedings that terminated in the applicant’s favor, youthful offender adjudication or convictions that have been sealed. Also, New York is a state where public employers cannot ask about criminal history. You really need to know your state and local laws as they pertain to criminal history questions. Just because your state or city allows you to ask a criminal question, the information you are allowed to ask about may be limited.

UPCOMING WEBINAR
Tuesday, May 1, 2018
Steve Strauss
Presented by: Steve Strauss,
Small Business Expert, The Self-Employed
As a small business owner, you will make a few mistakes along the way. The key thing is knowing how to avoid the big, expensive ones. In this lively webinar, USA TODAY small business columnist Steve Strauss shares the common mistakes that small businesses make and solutions to help you avoid them.
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