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The Ten Commandments of Hiring

by Amie Remington, Esq., on May 24, 2016
Last week, I counted 30 different federal laws that apply to employers in America. The applicability of each federal law to an individual employer depends on the employer's size and location and whether or not the employer has a federal contract, the workforce is unionized, the employer is family owned, the employer participates in any federal programs such as E-Verify, and other factors.
In addition, each state has its own set of employment and taxation laws. This is enough to make the most Type B, laid-back business owner a bit neurotic. Throw in the fact that municipalities have ordinances and regulations separate from the state and federal laws, and many business owners may face full-scale neurosis.

However, there is no need to panic. 

The vast majority of these laws have a storied history and are designed to protect American workers. They ensure worker safety, equitable pay and fair treatment. With preparation, common sense and an eye towards fairness and equality, business owners can recruit, select and hire great employees without running afoul of the law.

The first and most important rule of recruiting, selecting and hiring great employees is that individual candidate's sex, color, race, religion, national origin, age, marital status, and handicap/disability is, in most cases, completely irrelevant to his or her ability to perform the tasks of the job for which they have applied.(3) Therefore, on applications and in interviews, questions relating to these topics should be completely avoided.(4) 

For example, hiring managers should never have a preconceived notion that they prefer a female to a male for a certain position (or vice versa) because gender simply isn't a legitimate consideration for most jobs. There are limited exemptions to the rules regarding what factors should not be considered, but using an exemption you don't qualify for can be costly.

Before you decide exclude a candidate from consideration for any of these reasons, it is best to seek counsel from your human resources department or your employment attorney.(5) If you don't take this step, your next step may be determining whether or not you have insurance coverage to defend a wrongful failure-to-hire claim.

Job advertisements should reflect only legitimate job functions. In years past, one airline recruited "bright, resourceful, cool, collected, social, reliable, bubbly, confident and pretty" young, unmarried women. Another requested females "not over the age of 25" with a bachelor's degree or higher, who were "at least 160 cm," whose weight was proportional to their height and who did not wear "dental braces."(6) Females in these positions were terminated if they became too old (about 32), married or became pregnant. Thankfully, we can fast-forward to 2016, when advertisements actually reflect the duties and tasks associated with the job.

After a well-crafted, on-point advertisement is placed, it is imperative that your company train the person responsible for hiring. All interviews should be conducted by a person with a thorough understanding of the job description and the day-to-day functions of the job such as time, educational, skill, physical requirements, any certifications or qualifications needed, along with anything that might automatically disqualify a candidate for the job.(7)

In the interview, all applicants should be asked the same job-related questions. Avoid the temptation to go off-script. The benefit is that you can then do an apples-to-apples comparison of the candidates, rather than, say, and apples-to-fudge-covered-brownies comparison. After all, fudge covered brownies will always win, right?

Finally, some positions may merit a thorough background check. Remember an arrest is very different than a conviction. Applicants should have the opportunity to explain irregularities in their background checks, and inquiries should be specific to the job sought. For example, if you are selecting someone to handle large sums of money, or who may have access to financial systems or data, you would be looking for convictions for embezzlement, theft or other money-related crimes. Often, applicants have logical explanations and can lead to a win-win scenario: the applicant gets selected for a great job and you end up with a loyal employee.

No article on hiring and selection would be complete without a discussion on social media. My best advice is simple: Do. Not. Ever. Use. Social. Media. To. Vet. Candidates. One quick glance at a person's profile will tell you several things that are protected by law (and not relevant to the job), such as marital status, religion and whether or not the candidate has children. Instead, use the legitimate techniques listed advice and you'll end up with a great employee.

(3) There are a few bona fide exemptions from this rule. For example, some types of religious institutions can insist that candidates practice the same religion. However, even within that exemption, there are exceptions, so business owners should seek expert help if there is any question or doubt.

(4) As a protected category, "sex" is quite broad. Sex-based considerations include sexual orientation. It also includes questions related to pregnancy. (Anyone with manners knows it is rude to ask questions related to pregnancy anyways, right?)

(5) By "employment attorney," I really do mean "employment attorney." I don't mean your best friend who is a fantastic probate attorney. I mean someone who can define all 30 employment laws. You wouldn't go to a dermatologist for a broken arm or an orthopedic physician for a weird mole, would you? Same concept applies here.

(6) Seriously, this is true.

(7) For example, if the job requires a license/certification, it is likely fair to exclude all candidates who do not possess it.

Article originally appeared and reprinted with permission by Powerful Women of the Gulf Coast, the Magazine, March 2016 edition.

Amie Remington, Esq.

As General Counsel of LandrumHR, Amie advises on all business and employment-related legal issues. She is also a regular speaker at national and state-wide events, discussing all aspects of employment law that affect all employers, including Title VII of the Civil Rights Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the National Labor Relations Act, the Americans with Disabilities Act, and the state counterparts to these laws. Before joining LandrumHR, Amie was a partner in the law firm of Bozeman, Jenkins & Matthews, P.A., where she represented employers, management and the State of Florida in all types of employment-related matters. At the firm, Amie focused on policy creation, prevention of discrimination and harassment and management education and training, as well as all aspects of employment litigation, including trial and appeal work.

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