When starting the recruiting process, it is important to be aware of certain legal issues in order to minimize risk. Job postings, interview questions, checking references and making job offers all need to be done in a way that meets legal requirements. In some cases, you could be asking unlawful or even discriminatory questions without even knowing it. Many of the mentioned items require some basic knowledge of the BC Human Rights Code. According to the BC Human Rights Code (Discrimination in employment advertisements), you must not publish job postings or advertisements that give preference to: Once you are ready to begin your interviews, there are a few key points to keep in mind when designing questions. You need to ensure your interview process is not intentionally or unintentionally asking questions on prohibited grounds (see Discrimination in employment provisions). It is important to describe the job and requirements in a way that gives all applicants a chance to apply. For example, if a position requires regular overtime and has an irregular schedule, do not ask: To ensure the candidate can work the schedule you need, you should ask: If a job requires heavy lifting, do not ask:
To ensure the candidate can meet the physical requirements for the role, you should ask:
CHECKING REFERENCESIt is important to note that you cannot ask questions that are illegal during any stage of the recruitment process including your interview or while conducting reference checks. For example, just as you cannot ask a candidate about a disability in the interview process, you cannot then ask their former employer, “How many sick days did they take last year?” However, you can ask if they were reliable and punctual. MAKING THE OFFERAccording to the BC Human Rights Act (Discrimination in wages), it is important that you not “discriminate between employees by employing an employee of one sex for work at a rate of pay that is less than the rate of pay at which an employee of the other sex is employed by that employer for similar or substantially similar work.” You must ensure that differences in wages when offers are being made are based on “the concept of skill, effort and responsibility, seniority systems where unions exist, merit systems and systems that measure earnings by quantity or quality of production.” In all steps of the recruiting process (job postings, interviews, checking references and making the offer), remember the prohibited grounds and make sure all questions are asked in a way that gives all applicants a fair chance to respond based on your job needs. Doing so will minimize the risk and chance that you might be charged with discriminatory hiring practices. Good recruiting is also good ethical and business practice, which will foster your positive reputation and make it easier for you to recruit. Remember that every interview you conduct is like an advertising opportunity. Every candidate should leave wishing they would have the opportunity to work for you. This article may be republished for non-commercial purposes subject to the provisions of the Website Use Agreement. To republish this article, you must include the following notice along with the article: "Copyright © 2020 go2 Tourism HR Society. All Rights Reserved. Republished under license."
Negligent hiring lawsuits have increased in the last two decades and employers have been forced to respond to them. Not being in the know about the latest hiring rules and regulations has never been so costly. RELATED: Statistically Proven Employer Branding Success On paper, recruiting a new employee might appear to be a simple process. Post the position on a job portal, request resumes, select a few who fit the bill, invite them for an interview, shortlist a few, check references, and finally present the offer letter to one—or more depending on the number of vacancies. Sounds simple enough right? In reality it is anything but simple. It is an extremely complex process, and every step of the way you need to be aware of certain legal implications. Even the questions that you ask during an interview need to be carefully considered, lest they be considered discriminatory. Every step mentioned above needs to adhere to legal requirements. Failing to do so can swiftly land you in a legal mess. Let’s start at the top and examine six key legal issues a recruiter needs to be wary of during recruitment and selection. Please note that I am not a lawyer, but rather a concerned HR professional who wants to prevent her peers from making unnecessary mistakes. When in doubt, please consult a lawyer. Job PostingThe wording of the job posting, be it in a newspaper or a job portal, needs to be carefully framed. It shouldn’t give preference to a person’s race, color, religion, sexual orientation or even political belief. This is guarded by the U.S. Equal Employment Opportunity Commission (EEOC). It is illegal to discriminate against an applicant based on any of these factors. Some of the other parameters are gender, age, and disability. EEOC also protects employees and job applicants from the following: a) Harassment based on any of the discriminatory parameters b) Retaliation in case they file a formal complaint regarding discriminatory practices, or assist with an investigation on similar lines. Pre-Employment AssessmentsMany companies require potential hires to take part in a pre-employment assessment, an area ripe for recruitment related lawsuits. Assessments need to avoid the following:
In order to prove test validation, an employer must conduct a statistical study that proves that the pre-employment assessment measure what it is purported to without adversely impacting a protected group. As an employer, when choosing a pre-employment or talent assessment provider, it is extremely important that the test publisher can prove test validation. InterviewThe questions you ask during interviews need to be carefully framed. Like the pre-employment assessment, interview questions need to be carefully selected, so as not to be considered discriminatory. You also need to explain the job requirements in such a way that it provides equal opportunity to every applicant. For example, if the job requires the incumbent to be on call 24/7, state that explicitly, instead of queries like, "Do you pick up your kid from school?" In cases of disability and religion, the EEOC specifically states that the employer needs to provide reasonable accommodations for employee or job applicants’ disabilities or employees' religious beliefs, unless these type of accommodations create significant difficulty or adds unaffordable expenses for the employer. Checking ReferencesAbide by this golden rule: Do no ask any questions of references that you can’t bring up during an interview. You can’t ask an applicant about his/her disability. Similarly, you can’t ask a former employer the same question. Instead, inquire about punctuality, performance level, work ethics and the ability to work as part of a team. During background checks, make sure you keep in mind both federal and state laws. For example, in some states like California, Connecticut, Hawaii, Illinois, Maryland, Oregon and Washington, it is illegal to reject an applicant based on their credit history. In other states it is legal. Final OfferWhile making a formal job offer to an applicant, ensure that the pay offered is based strictly on the skills and responsibilities required for the job. In companies that have a union, the pay is often calculated on seniority or quantity/quality of production. It shouldn’t be based on any of the discriminatory parameters mentioned earlier. The U.S. Department of Labor regulates legal issues related to wage structure, including minimum payment, overtime payment and severance packages. The person in charge of human resources in your company should be aware of these. Most small businesses do not have a formal human resources department in place. You can contact any of the small business liaisons of the U.S. Equal Employment Opportunity Commission and they can answer any questions you may have. Other Legal Mechanisms in PlaceBesides the general law that covers every job applicant, there are certain laws for specific groups of employees or specific professions. The recruitment and hiring of law students or lawyers is overseen by the National Association for Law Placement (NALP). Any company that has a union system in place should be aware of the National Labor Relations Board, an independent federal agency that has the authority to enforce the National Labor Relations Act (NLRA). Discrimination is the biggest concern as far as the legal issues related to recruitment and hiring are concerned. The most important prerequisite is equal opportunity for every job applicant to eventually land the job. Every person connected to the hiring process should be aware of the above illustrated legal issues. Besides the legal ramifications, the reputation of a firm suffers if instances of discrimination come to light. Merit should be the only basis of recruitment, and should be ingrained in your company’s recruitment process. Over to YouWhat legal issues are you most concern about? Danny Kellman manages the Pre-Employment HR Metrics, Project Management and Sales team at The Human Capital Centre of Expertise (HUCACE), pronounced "UKC." Check out the company blog here. Danny is a strategic HR professional and consultant with over 10 years experience in different HR functions – blending and leveraging the right amount of science, technology and emotional intelligence into efficient and effective recruitment strategies for global based brands. In providing powerful scientific insight, HUCACE helps HR professionals making informed decisions at the hiring stage. |
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