There are a number of avenues available for recruiting applicants for a job position, including internal job postings, employee referral programs, advertisements, the use of professional employment and temporary employment agencies and recruitment programs at educational institutions and community organizations.
Advertising job openings
Federal and state laws prohibit employers from discriminating against applicants on the basis of their:
As such, advertisements designed to attract candidates should be carefully drafted to avoid any indication of discrimination. Advertisements that are not crafted carefully may give rise to claims of discrimination, even unintentionally, if they refer to race, sex, religion, national origin, age or disability.
For instance, an advertisement seeking “recent college graduates” or “young and energetic” people likely would be found to have a discriminatory effect against older persons. Similarly, language in an advertisement that specifies a physical ability required for the job (even something as seemingly innocent as a clear speaking voice or language proficiency) may be found to discriminate against disabled persons or cultural groups.
Therefore, when crafting an advertisement, an employer should clearly and concisely describe the position and any qualifications for the position without making reference to attributes that are usually associated with one race, gender, etc. It is also a good idea to include a statement in the advertisement that the employer is an “Equal Opportunity Employer.”
Once the need for new employees is established, one of the most important aspects of screening and selecting a new employee is to develop a job description that clearly defines the fundamental requirements and functions of the position. This written outline includes a detailed description of the skills and qualifications required to do the job. It should not include extraneous or minor job responsibilities. In addition to the obvious function of identifying the employer’s hiring needs, the job description performs an important legal function by providing an objective standard by which a prospective employee’s qualifications can be measured. Having a job description in place before posting a job opening is important. A job description allows the employer to have established criteria that can guide the screening of applicants. The job description should be fair and balanced and should define the employee’s role accurately. A prospective employee who does not meet the standard typically does not have a basis for a claim of unlawful discrimination. This description can be used throughout an employee’s time in a position, helping both the employer and employee to assess performance and development. This description can become very important in different context; for instance, the description will be critical in evaluating a request for accommodation for an employee with a perceived disability.
The employment application is a good starting point for finding the most qualified candidates for the job position. Whether the employer uses an application or some other means of collecting information, an employer must seek only information that is required for the position or positions for which the individual is applying.
Generally, an employment application should contain the following information:
If an employer chooses to use an employment application, the employer must ask the applicant whether or not he or she is legally eligible for employment in the United States. Additionally, an employment application should indicate that it is not an offer of employment or contract and that, if hired, the employment will be “at-will” subjecting the employee to termination at any time for any reason. The application should also include a statement that the employer is an Equal Opportunity Employer and will not unlawfully discriminate against someone.
The following topics should be avoided because inquiries on these topics could lead to claims of discrimination by prospective employees:
An employer may also want to know whether the applicant has any criminal convictions. Some states have laws prohibiting an employer from making this inquiry; whereas other states allow employers to conduct criminal background checks. Additionally, some states have laws requiring employers to perform such checks.
Certain federal contractors and subcontractors with 50 or more employees are required, in addition to other obligations, to prepare written affirmative action programs in accordance with regulations from the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). The OFCCP requires federal contractors to obtain, when possible, gender, race and ethnicity data on applicants and employees. The Department of Labor has given guidance on obtaining this information. The preferred and most reliable, method is for the contractor to track data of responses by self-identification. Contractors may use tear-off sheets, post cards or short forms to request the demographic information. The invitation to self-identify should always state that providing information is voluntary. When an applicant declines to self-identify, the contractor has no further obligation. However, visual observation may also be used when appropriate.
The regulations were amended to define “Internet applicant” and to require contractors to collect that information from those individuals. An individual must meet four criteria to be considered an “Internet applicant:”
The interview is an extremely important part of the recruiting and hiring process because it enables an employer to convey important information about its operations and to learn valuable, first-hand information regarding an applicant for employment. However, to avoid potential discrimination claims, it is crucial that an employer understand what types of questions should and should not be asked during an interview. In light of the beneficial information that can be obtained about an applicant during a properly conducted interview, as well as the potential legal claims that can result from an improperly conducted interview, employers should centralize the interviewing function to the extent possible with individuals trained to conduct an effective and appropriate interview such as a human resources professional. Employers who do not have the luxury of centralizing interview responsibilities with a full-time human resources professional and other high-level officials should conduct training and develop and distribute checklists to its employees who interview applicants so that the interviewers will be aware of the kinds of inquiries that are proper, as well as those that are not permissible in an interview setting.
An interviewer should focus on questions that are related to the applicant’s skills and qualifications and requirements of the job. To conduct an effective interview, the interviewer must be familiar with the relevant job description, essential job functions, company policies, the application and the applicant’s resume and references. By reviewing such documents and information prior to the interview, the interviewer can be sure to ask specific and focused questions designed to obtain information regarding an applicant’s employment history and job qualifications to determine if the applicant is a good fit for the position.
Federal law affects the types of questions that may be asked during an interview. Title VII of the Civil Rights Act (Title VII) and its amendments prohibit discrimination based on race, sex, color, national origin, religion and pregnancy. The Age Discrimination in Employment Act (ADEA) prohibits discrimination against individuals age 40 and older. The Americans with Disabilities Act (ADA) protects qualified individuals with disabilities from employment discrimination. Many states have enacted legislation prohibiting discrimination, as well. Employers are required to follow the set of regultions that most benefit the employee. The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers from discriminating against applicants and employees due to their military service or status.
Employers must make sure that the questions asked during an interview do not violate the rights of an applicant in a protected category. As a result, employers should avoid questions that relate directly or indirectly to protected categories, unless a bona fide occupational qualification (BFOQ) exists for the particular job in question. The BFOQ defense is extremely narrow. Significantly, race never may form the basis of a BFOQ defense; thus, questions regarding race during an interview are never appropriate. Examples of the limited, legitimate BFOQs include hiring only females to clean the inside of a female locker room at a health club. Generally, courts have not considered customer preference to be a legitimate BFOQ. An example of a situation that would not be a permissible BFOQ is a restaurant that hires only females because its customers prefer to have female waitresses.
Due to the laws that prohibit age discrimination, an employer should avoid questions about an applicant’s age, although asking whether someone is of legal working age (generally at least 18 years old) is appropriate given an employer’s need to comply with applicable child labor laws. Avoid inquiries into an applicant’s credit history or financial status, unless directly relevant to the job. Do not ask applicants about their height or weight unless relevant to the job. Also avoid questions about an applicant’s union affiliation.
During the interview, the interviewer should feel free to take notes regarding the applicant’s qualifications and responses to questions. Employers may make notes about an applicant’s general appearance (that is, professional or unprofessional), interpersonal communication skills, attitude and other subjective factors concerning the applicant’s ability to perform the job in question. However, employers should be careful about the type of notes they write down concerning an applicant because such notes likely will be subject to disclosure in any later lawsuit or charge of discrimination. Notes relating directly or indirectly (through codes) to an applicant’s protected status category are unlawful and must be avoided. Only factors relevant to an applicant’s ability to perform the job may be considered and/or recorded during the hiring process.
The purpose of the Americans with Disabilities Act (ADA) is to eliminate discrimination against qualified individuals with disabilities. To be protected under the ADA, an applicant must be considered a “qualified individual with a disability.” A qualified individual with a disability is generally a person who meets all of the following:
Under the ADA, an individual with a “disability” is one of the following:
In accordance with the Americans with Disabilities Act Amendments Act (ADAAA), “substantially limits” no longer means either “significantly restricted” or “severely restricted.”
While the ADAAA does not provide a definition of “substantially limits,” the ADAAA does direct the EEOC to revise its regulatory definition of “substantially limits.” It is unclear when the EEOC will issue final regulations that define the term “substantially limits.”
Additionally, the ADAAA has added a definition of “major life activities” to the ADA, which includes a lengthy illustrative list of major life activities such as:
The ADA requires employers with 15 or more employees to provide qualified individuals with disabilities equal opportunities with respect to the terms and conditions of employment. The ADA’s prohibition against employers from discriminating against people with disabilities covers all aspects of the employment process, including application, promotion, layoffs, evaluations, compensation, etc. While an employer can make pre-employment inquiries into the ability of an applicant to perform job-related functions, an employer cannot ask disability-related questions or require medical examinations until after a conditional job offer has been made. Under the ADA, therefore, the pre-employment process is divided into two stages:
At the pre-offer stage, an employer may not make any disability-related inquiries. A disability-related question is one that is likely to elicit information about a disability. However, employers can ask open-ended questions where there are many possible answers and only some of which would contain disability-related information. An employer may not ask a job applicant about the existence, nature or severity of a disability and is limited to only asking about an applicant’s ability to perform specific job functions. An employer also cannot require a job applicant to have a medical examination or to respond to medical inquiries before the employer makes a job offer. At the post-offer stage an employer may make unrestricted medical inquiries if all entering employees are subjected to such an exam regardless of disability. An employer may not refuse to hire an individual with a disability based on the results of such inquiries unless the reason for rejection is job-related and justified by business necessity.
An employer may condition a job offer on the satisfactory result of a post-offer medical inquiry if this is required of all entering employees in the same job category. A post-offer inquiry does not have to be job-related. However, if an individual is not hired because a post-offer inquiry reveals that the applicant has a disability, the reason for not hiring that individual must be job-related and necessary for the business or because employing the applicant would be a direct threat to health or safety. The employer also must show that no reasonable accommodation was available that would have enabled this individual to perform the essential job functions.
Screening candidates for employment by conducting background and reference checks is a valuable way for employers to discover relevant information about potential employees. The information discovered may indicate whether an applicant will be a good fit for a position. On the other hand, the information discovered may suggest that an applicant is not qualified. An important benefit associated with thoroughly checking into the applicant’s background is that an employer may protect itself from potential liability associated with negligent hiring and negligent retention claims. For a detailed discussion of background checks, reference checks, criminal record checks, driving record cheeks, and the Fair Credit Reporting Act (FCRA), please refer to Chapter 04: Background checks.
Investigation of employees upon hiring and throughout the duration of their employment to ensure their competency for their positions can be an invaluable tool in creating and maintaining a qualified and skilled workforce. In addition, investigations may be essential in avoiding liability for the conduct of employees.
Note: Employers should be aware of their potential liability, under state law, for negligent hiring and/or retention when their employees cause injuries to third parties. Under state law, the employer may be bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetence.
Employers can be held liable for hiring or retaining an employee the employer knows or should have known was not suited for the particular employment. The reason for imposing liability in this context is that hiring a person who lacks competence may result in injuries to third parties if the employee performs his duties negligently.
With regard to negligent hiring, employers should perform reasonable investigations of their employees upon hiring to ensure that each employee’s past does not indicate that the employee is not suited for his position. The nature and responsibilities of the position, the thoroughness of the investigation and the extent of prior conduct indicating relevant tendencies will often determine the employer’s liability when an employee harms a third party. Employers must be mindful that certain positions will require more thorough investigations based on the level of responsibility and potential for injury. Keeping in mind the employee’s level of responsibility and potential to injure others while performing duties, the employer should seriously consider background checks to investigate:
The adequacy of the employer’s investigation will be evaluated based on the risks associated with the position, as discussed above, the extent of the investigative measures employed and the discoverability of the employee’s past conduct or history that would indicate a tendency that would render the employee unsuitable for his position. The employer should be detailed and accurate in documenting its investigative practices and policies in order to demonstrate a record of consistent use of reliable and adequate information in its hiring and retention decisions.
Most employers think of noncompete agreements or other post-employment restrictive covenants as subjects to be considered only in the context of protecting their companies from unfair competition by others. An employer always should be aware of the potential risk that the person being hired comes with some baggage from prior employment. Consideration should be given in the hiring process to whether the applicant is under valid restrictions that would affect the individual’s suitability for the job. The failure to address legitimate restrictions could result in having the new employer dragged into court as a defendant in a claim for unlawfully interfering with the prior employer’s contractual rights. If the employee is enjoined from working for the new employer, the new employer will have wasted valuable time and money. Even worse for the new employer is that it could be forced to indemnify the employee if its corporate by-laws require it to do so.
The Americans with Disabilities Act (ADA) prohibits employers from requiring applicants to undergo a medical examination before a job offer has been made. However, an employer can require a physical agility test as long as it is given to all similarly situated applicants regardless of disability. If a test screens out individuals with disabilities, the test must be job related.
At the post-offer stage, an employer may require medical examinations in order to obtain relevant information about an applicant’s ability to perform a job. An employer may condition a job offer on the satisfactory result of a post-offer medical examination if this is required of all entering employees in the same job category. If an individual is not hired because a post-offer medical exam reveals that the applicant has a disability, the reason for not hiring that individual must either:
The employer also must show that no reasonable accommodation was available that would have enabled this individual to perform the essential job functions.
All information obtained from post-offer medical examinations and inquiries must be collected and maintained on separate forms. All medical-related information must be kept confidential, subject to a few exceptions, including:
It is not a violation of the ADA for employers to use drug tests to find out if applicants are currently using illegal drugs. Under the ADA, a drug test is not considered a “medical examination.” Thus, pre-offer drug tests are not prohibited. Alcohol tests, however, are considered medical examinations under the ADA. Therefore, an employer may test for alcohol use only after making a conditional offer of employment. An employer can withdraw a job offer if the employee fails the alcohol test. The ADA specifically provides that any applicant who is currently an illegal drug user is not a qualified individual with a disability. However, people who have been rehabilitated and do not currently use drugs illegally may be protected by the ADA. Employers should provide prior notice of its testing policies and follow reasonable drug testing procedures to ensure individual applicant privacy.
Employers who receive federal contracts for $25,000 or more are subject to the federal Drug Free Workplace Act.
An employer may decide to use a pre-employment applicant performance or aptitude test as a way to predict the future job performance of an applicant. While these tests are legal, employers should be careful if they choose to implement such tests. Pre-employment tests that tend to screen out individuals with disabilities may constitute discrimination under the ADA unless they are job-related and consistent with business necessity. Tests must accurately reflect the skills, aptitude or other abilities that the applicant should possess in order to perform the essential functions of the particular job.
Employers often use scored tests to assist in making hiring decisions. Scored tests include paper-and-pencil tests or other scored measures that purport to evaluate an applicant’s knowledge, skill or ability level. Private employers often use these tests to measure not only cognitive ability, but also to assess personal characteristics such as integrity, self-initiative, conscientiousness and responsibility.
The scores of these tests can be used in a variety of ways. For instance, scores can be used to rank candidates, for screening purposes to determine which candidates meet a predetermined minimum level of qualifications or for use as one objective piece of information to be considered with all the other available relevant information.
Section 703(h) of Title VII expressly authorizes employers to use professionally developed scored tests. These professionally developed tests, however, must be job-related and cannot show bias towards any race, color, sex, religion, age, disability or other protected class.
In December 2007, the EEOC issued a fact sheet relating to Employment Tests and Selection Procedures. The EEOC issued the fact sheet to caution employers in the use of various tests and selection procedures to ensure their compliance with the law.
The ADA requires employers to select and administer pre-employment tests in a way that ensures that individuals with disabilities have a fair opportunity to demonstrate the job-related skills the tests seek to measure. Employers must offer reasonable accommodations to disabled applicants to enable them to demonstrate their qualifications during the hiring process. Employers are allowed to request, in its test announcement or application form, that individuals inform the employer within a specified amount of time before the test period if they require a reasonable accommodation in order to take the test. The employer is also permitted to request documentation of the need for the requested accommodation. The employer then may seek independent verification of the need rather than rely solely on the individual’s treating physician. However, should the applicant fail to notify the employer of his or her need for the accommodation before the test, the employer is still responsible to provide the accommodation if the individual first becomes aware of the need during the test administration. Because an employer must make a reasonable accommodation for a qualified individual’s known physical or mental limitations, the duty of determining whether an employer needs to make a reasonable accommodation is not triggered until there is a request from the applicant.
The employer does not have to implement an accommodation that would impose an undue hardship. An undue hardship is an action requiring significant difficulty or expense based on a variety of factors, including the nature and cost of the accommodation and the overall financial resources of the employer. If more than one possible non-hardship accommodation exists, the employer may choose. The employer may select the simpler or less expensive accommodation so long as it provides meaningful equal employment opportunity. While the expressed choice of the applicant is a primary consideration, employers are not required to provide applicants the accommodation of their choice so long as the accommodation reasonably enables the applicant to perform the test. Employers should keep in mind, however, that the individual applicant’s active participation in identifying and selecting accommodations is an important factor in any lawsuits over accommodation.
Federal law governs the use of lie detector tests in the workplace. The Employee Polygraph Protection Act (EPPA) prohibits most private employers from using lie detector tests for pre-employment screening. A lie detector test is broadly defined as a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator or any similar device, whether mechanical or electrical, which is used to measure the honesty or dishonesty of an individual. The EPPA applies to all employers engaged in or affecting commerce. Federal, state and local governments are not affected by the law. Also, the law does not apply to tests given by the federal government to certain individuals engaged in national security-related activities.
As a general rule, an employer cannot require a job applicant to take a lie detector test as a condition of his or her employment. However, the EPPA does authorize lie detector tests under very limited circumstances. The Act permits polygraph tests to be used in the private sector, subject to restrictions, to certain prospective employees of security service firms (armored car, alarm and guard) and of pharmaceutical manufacturers, distributors and dispensers. In the instance where polygraph tests are permitted, they are subject to numerous strict standards concerning the conduct and length of the test. Further, examinees have a right to written notice before testing, the right to refuse or discontinue testing, the right not to be asked degrading or unnecessarily intrusive questions and the right not to have the results disclosed to unauthorized persons.
The Act does not preempt any provision of any state or local law or any collective bargaining agreement that is more restrictive with respect to lie detector tests.
Many states adhere to what is called the employment “at-will” doctrine. Employment at-will means that when an employee is hired for an indefinite duration either the employer or the employee may terminate the employment relationship for any lawful reason or no reason, at any time.
Often, state law presumes that employment relationships are at-will. Thus, unless the parties enter into an express oral or written agreement to the contrary, a presumption arises that the employment relationship is at-will and either party may terminate the relationship at any time for any lawful reason. The terminating party generally is not required to justify the termination of the employment relationship. The motive for termination is not relevant as long as the reason for the termination is not prohibited by law (such as termination based on race).
For employers, the employment at-will doctrine is particularly important because it limits the claims that can be brought by employees against their former employers. Generally, this doctrine means that an employee cannot sue an employer for breach of contract or wrongful discharge as a result of his or her termination unless he or she can show that an employment contract of a definite duration existed or that another exception to the employment at-will doctrine applies.
Perhaps the easiest way for an employer to remove itself (either intentionally or unintentionally) from the employment at-will doctrine is to enter into an employment contract with its employer for a definite or fixed period of time. Employers do this by contracting to employ an employee for a specific period of time (for instance, a one-year written contract) or contracting not to terminate an employee without “just cause.” While employers may wish to contract with certain employees, such arrangements often are not desirable, in part because an employee then has a potential breach of contract claim if the employment relationship is not a positive one. To avoid any potential confusion about whether or not an employment contract is at-will, employers who wish to create only at-will employment relationships with their employees are advised to include express written statements in all of their basic employment documents (such as offer letters, employee handbooks and handbook acknowledgment forms) that clearly state the employment is at-will.
A common way that employers communicate information to potential hires about an employment position is through offer letters. Offer letters generally contain items such as starting salary, start date, bonus information and other information about the prospective employee’s compensation and benefits. Such letters also may be used to advise the potential hire of any remaining steps that must be taken or any obligations that must be met before employment can begin (such as drug testing, criminal background check and fitness-for-duty tests).
Employers should be mindful that offer letters can be a trap for the unwary. For instance, if an employer uses language in an offer letter that suggests permanence or a specific duration for the employment relationship, such language might be interpreted as creating an employment contract for a definite or fixed term. Based upon the letter, the employee may claim to have an enforceable contract. Employers should safeguard against such potential claims by always including a specific at-will disclaimer in offer letters and by avoiding language that suggests a specific duration of employment (such as annually). Employers also should not use language that suggests a permanent employment relationship will be created, such as “as long as you perform satisfactorily, you will have a job” or “we consider your employment to be part of an enduring employment relationship.”
According to federal immigration laws, new employees and their employers must complete an “attestation” contained on an Employment Eligibility Verification Document, which is called a Form I-9, under penalty of perjury. The employee must attest that he or she is authorized to work in the United States and is not an undocumented immigrant. The employer must attest that it has reviewed the employee’s identification documents and that the documents appear to be genuine. The employee should fill out Section 1 of the form on the first day of employment. The employer must complete and sign Section 2 of the form within three business days of the first day of employment. The I-9 form must be completed – an employer cannot simply attach photocopies of the employee’s documentation. An employer should not hire a person who will not fill out the form. The I-9 form for each employee should be retained for three years after the date of hire or one year after the employment relationship ends, whichever is later.
Employers must use a version of the I-9 updated in 2017. The updated form is identified by the date (07-17-17) listed in the lower left corner. The updated form is required for any new employee but need not be completed for current employees. Using a previous version of the form is a violation that could result in civil fines during as Immigration and Customs Enforcement review. The list of acceptable documents for foreign-born employees has been amended to include Certificate of Report of Birth (Forms DS-1350 and FS-545) and the Consular Report of Birth Abroad (Form FS-240). For a copy of the I-9 form visit:
E-Verify is a voluntary program that compares information from an employee’s Employment Eligibility Verification Form I-9 to the data in the U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. Employers with federal contracts or subcontracts are required to use E-Verify to determine an employee’s eligibility.
Note: Several states require E-Verify. Employers should check state laws regarding this topic for more complete information.
This service is currently operated free of charge and is used by the federal government to stop unauthorized employment. In order to participate, the new hires need to complete an I-9 form with all information included in Form Sections 1 and 2, including:
As of 2018, the E-Verify Federal Acquisition Regulation (FAR) requires federal contractors and subcontractors to enroll in and use E-Verify. All new federal contractors and subcontractors with a FAR requirement must insert their Data Universal Numbering System (DUNS) identifier during the E-Verify enrollment process. Existing E-Verify contractors need not provide their DUNS number until they update their company profiles.
Employers covered by the Fair Labor Standards Act (FLSA) must provide information about health insurance marketplaces (Health Insurance Exchanges) to new employees within 14 days of start date.
Model notices are available online at:
The W-4 form is filled out by employees for determining the withheld pay from federal taxes. When employees earn wages or a salary, the employer must deduct a portion of the taxes in advance and send it to the Internal Revenue Service prior to the annual deadline. The form allows the employee to indicate the amount that should be withheld from his or her pay for taxes. The form can be found at:
The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) created the requirement for employers to report certain information on all newly hired employees to a designated state agency shortly after the date of hire. States match new hire reports against their child support records to locate parents, enforce an existing child support order or help quickly locate alleged non-custodial parents to help establish paternity and child support orders. Once the matches are complete, the state transmits the new hire reports to the National Directory of New Hires (NDNH). State agencies operating employment security and workers’ compensation programs also may have access to their state New Hire information to detect and prevent erroneous benefit payments and to prevent unlawful or erroneous receipt of public assistance payments.
The Department of Health and Human Services estimates that the New Hire reporting program has increased child support collections by tens of millions of dollars over the past 10 years. The New Hire Reporting Program is part of the Welfare Reform Legislation. A major focus of the PRWORA is parental responsibility to support children.
It is estimated that more than 30% of child support cases involve parents who do not live in the same state as their children. The Department of Health and Human Services Office of Child Support Enforcement uses new hire reports to assist states in locating parents who are living in other states by matching new hire data with child support participant information at the national level. Upon receipt of new hire information from other states, state agencies will take steps necessary to either:
All states are required to establish new hire reporting programs. While the federal law establishes basic guidelines, state requirements may vary so employers should check the requirements in each state in which they report new hires.
Policies and Forms
Chapter 01: Recruiting and hiring