By Nesheba M. Kittling
March 18, 2010
Employers usually want to hire the most talented candidate for a position. In the quest to do so, employers sometimes unknowingly commit one of seven common mistakes that can expose their company to potential litigation and/or result in a hiring disaster. However, the “seven deadly sins” can be avoided by taking the information below into consideration:
1. Omitting Items From An Application
There are at least three items that should be included on every employment application. First, employers should clearly state in a conspicuous place on the application that they do not discriminate on the basis of race, color, sex, religion, age, national origin, disability, citizenship status or any other characteristic protected by law. Second, all applicants should be required to sign a statement attesting to the fact that the information provided on the application is true, accurate and complete and that any falsification, misrepresentation or omission of fact will be cause for denial of employment or immediate termination of employment. Finally, one of the most important questions on any job application is, “Why did you leave your former job and was it voluntary or involuntary?” The way that a prospective employee answers this question is often the single biggest indicator of whether you should hire that individual. If an applicant fails to answer the question, then the applicant likely has something to hide and an employer should seriously consider whether this is the right individual for the job.
2. Asking the Wrong Questions
There are certain questions that employers are prohibited from asking during the recruiting process. Specifically, employers may not make disability-related inquiries of applicants. (There are some exceptions to this rule, which vary from state to state. Consult your legal counsel to learn about these exceptions.) Furthermore, some laws prohibit employers from asking about arrest records and/or criminal convictions that have been sealed or expunged. Accordingly, it is important that companies ensure that their applications and interview questions do not ask any prohibited questions or run afoul of employment discrimination laws.
3. Missing the Tell-Tale Signs
Often, there are signals during the selection process that will let an employer know that the applicant may not be the best person for the position. For example, if an applicant has a history of switching jobs, then this may signal that the individual has problems maintaining employment and that this would not be the best employee for the company. In addition, while applicants are sometimes late for interviews for legitimate reasons, an employer should seriously reconsider hiring an applicant who cannot arrive on time to a job interview. This may be indicative of his/her inability to report to work on time should they be hired by the company.
4. Ignoring Your Intuition
If you have any reservations about hiring a candidate, do not hire him/her (provided there are no discriminatory reasons behind your reservations). Too often, an employer wants to give an applicant the benefit of the doubt, despite the fact that the employer’s intuition says that this is not the right person for the job. FOLLOW YOUR INTUITION. The adage that “no good deed goes unpunished” is too often true. When employers make exceptions, these exceptions often come back to haunt the employer in the form of litigation.
5. Failing to Protect the Company
Sometimes a company may be so eager to hire a particular candidate that the company is willing to negotiate certain terms in order to secure the candidate as an employee. In doing so, however, the company may unknowingly agree to terms that alter the employee’s at-will relationship with the employer. If your company is in an at-will state, it is important to have your legal counsel review all offer letters and to apprise counsel of any special negotiations that you are having with a candidate.
6. Being Inconsistent
If an employer is going to make an exception for one applicant, then the employer should make exceptions for all applicants. For example, if it is company policy to only hire individuals with college degrees for certain positions, then the employer should not hire an applicant who does not have a college degree, unless the company extends that exception to all applicants. Agencies responsible for enforcing equal employment opportunity laws and plaintiffs’ attorneys look for examples of inconsistencies to show disparate treatment and to support allegations of discrimination. Hence, failing to be consistent with hiring and recruiting policies can expose a company to litigation.
7. Forgetting About Diversity
Studies and research have shown that diverse workforces are more productive, help to improve corporate culture and have less discrimination-related litigation. Accordingly, it is important for companies to ensure that they are interviewing diverse individuals and their recruitment efforts include methods likely to attract a diverse applicant pool.
Nesheba M. Kittling is an attorney in the Chicago office of Fisher & Phillips LLP (www.laborlawyers.com), a national law firm representing employers in labor, employment, civil rights, employee benefits and immigration matters. The author can be reached at [email protected] or (312) 580-7818.
