Hiring without fear
You probably are aware that mistakes in how you fire workers can lead to big-time legal problems. But are you also aware that mistakes in how you hire them also can raise serious-and potentially costly-legal issues?
Starting off on the right foot is essential. Here are seven tips to help you.
Develop a reasonable job description Before you start hiring, think about the job and what skills and experience the employee should have.
A good job description will help you attract the kind of person you need. Then, in your interviews, you can focus on relevant questions. You'll be less likely to stray into sensitive areas that may have unwanted legal fall-out.
But there's another important reason to carefully describe the job: compliance with the Americans with Disabilities Act (ADA). Congress passed the ADA to give people with disabilities a fair chance to compete for jobs. When it comes to job descriptions, the ADA requires you to leave out marginal or nonessential duties. The idea is that you should avoid listing a job requirement that isn't really needed but which may discourage a qualified person who's disabled.
For example, suppose you're seeking a lawn mower operator. If you never or seldom require the mower operator to lift heavy object, heavy lifting isn't an essential function. If you list heavy lifting as a required skill, you'll unfairly disqualify someone with back problems. You may, however, mention heavy lifting as a desirable skill. Just make it clear that it's not required.
Word your ads carefully If you're inattentive, you might choose words and phrases that seem to discriminate illegally. For example, if your ad says "salesman," it appears to exclude women-a violation of laws banning sex discrimination. A better choice: "salesperson."
Similarly, you should say "general repair person" rather than "handyman," "crew leader" rather than "foreman" and-to avoid marital-status discrimination-"two-person job" rather than "married couple."
To avoid the appearance of age discrimination, you might consider saying "energetic" rather than "young." But this is a gray area, so to speak. At the Equal Employment Opportunity Commission, even a term like "energetic" or "aggressive" may set off alarm bells.
Require written applications Having prospects apply in writing assures that you'll get the same kinds of information from everyone. This helps assure you're comparing apples with apples. A written application provides other benefits as well.
For one thing, you can have applicants acknowledge that any false statement they make will be grounds for immediate discharge. For another, you can have them acknowledge that if you hire them, it will be an at-will employment. You're free to fire them for any reason-or no reason at all. (Of course, they're also free to quit without a reason.)
Be careful what you ask In your application form and in job interviews, stick to job essentials. Don't wander into sensitive, illegal areas. Obviously, you wouldn't ask about an applicant's race or religion, but you also shouldn't ask the applicant's age. If you need to find out if the applicant is of legal age for employment, simply ask, "Are you 18 years old or older?" If younger people can legally work in your area, change the question accordingly.
Don't ask for the applicant's marital status, or if the applicant has children. And be cautious about any question dealing with the applicant's health. You can, however, ask about the applicant's ability to do the job and whether the applicant would need an accommodation to do it.
The ADA does let you put prospective employees through a medical exam, but only after you've made a conditional offer of employment. And you need to require the same medical exam for everyone you hire for that kind of job, not just people who appear to be disabled.
Don't make casual promises Painting a positive picture for an applicant is fine. But don't get carried away and make statements that can be interpreted as promises of job security.
For example, suppose you say to the applicant, "You have a great future here. As long as you do your job, you'll be on our payroll." The applicant comes to work for you. A year goes by and the employee doesn't meet your expectations so you let her go. Your encouraging words at the job interview come back to haunt you. The employee sues you, claiming there was an implied contract that she wouldn't be fired without good cause.
Get written consent to gather additional information Former employers may not even speak to you without the applicant's permission. You'll get greater cooperation-and more honest answers-if the applicant authorizes former employers to disclose the good, the bad and the neutral. Also get specific permission if you plan to do a credit check or verify academic credentials.
Check with former employers--and other references This is especially important if you're hiring someone as a driver or who will be entering people's homes. You don't want to hire a driver who's had three accidents or who comes to work drunk or takes illegal drugs. And you don't want to expose your customers to a worker who has a history of violence or sexual aggression.
Someone hurt by such a worker may later claim that you didn't do a thorough job of screening the applicant. If so, you may be held legally liable based on negligent hiring.
Fred S. Steingold practices law in Ann Arbor, Mich. He is the author of The Legal Guide for Starting and Running a Small Business and The Employer's Legal Handbook, published by Nolo Press (Berkeley, Calif.)
Legal strategies may vary depending on the state in which you live and the specifics of your situation. See your lawyer for legal advice.
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