NCBVA Legal: The Inside Story

In this newsletter: 5 Things To Do (and Not Do) When Hiring New Employees

Written by Poul Lemasters, NCBVA Legal Counsel

Aug 27, 2020

We hear you – you’re scrambling to get people interviewed, hired, and on-boarded as fast as possible. You need vault men, painters, office admin, pourers, and grave diggers. See below for Poul Lemasters latest NCBVA article and get legal advice on the Do’s and Don’ts of Hiring New Employees.

The article covers:

• how to maintain a legal hiring process
• how to conduct a safe interview
• questions you can/can't ask
• what can a job description actually include
• how to check references within legal boundaries
• how to do post-interview follow-up and on-boarding

If you need any answers to these questions - then the article and Q&A conference call (Tuesday, September 22 @2pm ET) are for you. Register.

It’s hard to write about a topic, and not address how COVID19 has affected it. We see it in everything we do, including school, recreation, and our work life. While many times the news has a negative view, there are positives out there. For instance, we are seeing a growth in economy - including an overall rise back in employment. With more people looking for jobs, and many businesses needing new employees, there is an opportunity to find some of the best folks out there. As an employer - it means more than ever that you need a good hiring program.

It is everything that you do from:

• advertising a job;
• interviewing for the job; and
• onboarding a new employee.
  
  

Many, if not most, businesses have a ‘wing-it’ approach where they wait until they need a new employee and then throw together a process of finding the perfect employee. Many times, it comes down to the right person walking into the business at the right time. Yes - a system built on luck. Unfortunately, in today’s world, luck only gets you so far, so this article is going to be a focus on the interview portion of hiring.

Hopefully this is enough info to move you beyond luck - and get you legal, and protect you from some of those unlucky things that can happen when an interview is done wrong. This article can’t cover everything, but it is a look at 5 common interview issues and what to do, and of course what not do!

Your interview is more than just a casual get together so you can get to know someone. After all, we all know that many times the person showing up to the interview isn’t the person you hire. Anyone - ok, almost anyone, can be polished for one day. Your interview is meant to be a formal, structured process that helps you determine if the person is the right fit for the job and your business.

To do this, make sure you ask consistent questions. Don’t let the applicant control the discussion, make sure you are asking a specific list of questions that apply to the job you are hiring. How do you do this? By making sure you know the position you are hiring. This seems like an interview basic, but many times the boss - or the one doing the interview - isn’t the one who knows the most about the job being hired. Make sure that you have the right people involved in the hiring process. This means that you may want the manager or even another employee to be part of the interview process. After all, you probably won’t work with this new person every day, so you may not care about other things that those who will work with them every day may find important.

Take detailed notes from every interview. There is nothing worse than conducting a few interviews and then guessing at which person was the one who you thought was the one who said that perfect thing.

Taking notes on what you ask not only helps you track applicants - it can also protect you if there are questions later about your interview process. This leads to the last major ‘do’ of the interview, and that is writing it all down. Not only should you take notes, make sure your questions are all written out as well. Again, the interview is a formal process.

One thing that some employers like to do in an interview is show them a training video or a video that helps explain the job, and leads to the question of, is this allowable? The short answer is yes - but - as lawyers always say, there is a caveat. Having the applicant watch a video can be an excellent way to not only better explain what they may be doing, but also allow them a better view of the job they are applying. This is all good.

However, if you choose to use this as part of your process, make sure you use it for all applicants. One of the biggest issues in any interview is making sure that there are no discriminatory practices. This means if you happen to not show the video to a female who is applying - then it could be seen as a discriminatory practice and get you in trouble. One other item for your training video, if possible, make sure that the video itself is not discriminatory. Many older videos were constantly made with men in working positions and women in office positions. Try to use training videos that represent all protected classes.

In today's social media world, it is tempting to google or search out an applicant to see who they are in the world. Don’t use social media as a tool unless you have a plan. Unfortunately, there are certain things that are protected, such as race, color, age, gender - and when you go to the internet you can quickly identify these. That, in of itself, is not bad.

However, if you use those items to determine if you should hire - or even interview someone - then you can be setting yourself up for issues. One way to use social media properly is to have someone else in your organization do the search - after an application has been filed that states you can check - and let them see if there are any major issues, all the while not reporting to the person hiring anything that falls into a protected class.

As set forth above, the process is detailed, and you need to formalize your interview. This means writing things down; taking notes; preparing and reading the application. If you are unprepared it will show, and in today’s world of employment, employees will have options as well and could easily walk to another business and see if they have a better process that represents to them - a better option.

There are some basic questions that we always want to ask - but there are also many questions that we can’t ask. If you remember one thing, remember that

Any question involving race, color, national origin, age, gender (including pregnancy and sexual orientation), physical ability, religion, and marital status are not allowed.

There are some questions you can ask though, that will give you information you need, without violating this basic rule. For example:

You can ask: What is your address? How long lived there?

But you can’t ask: Do you own your home?

You can ask: What days are you available?

But you can’t ask: Can you work weekends (as this could violate religious observance)

You can ask: Are there any commitments that might prevent certain shifts?

But you can’t ask: Do you have kids? Are you single?

You can ask: Do you have a reliable way of getting to work?

But you can’t ask: Do you have a car? (A caveat, if a car is required for the position, then you can ask.)

You can ask: Are you legally eligible to work in US?

But you can’t ask: Are you a US citizen? Where were you born?

Continuing with questions to ask and not ask:

You can ask: If they can perform all functions.

But you can’t ask: Do you have a disability? Have you ever suffered workplace injury?

This leads to having and using an accurate job description. These are a few things to keep in mind when preparing your job description.

DO describe the title and position. No need to make up a fancy title. Use the simplest cleanest way to name the job. As far as the position description -keep it simple as well. Be objective and try to describe the job in a few sentences.

DO list any must haves - education / certifications /skills. This is the ‘must haves’ so keep it focused. If you need a driver’s license - because they must drive a vehicle then list “a valid driver’s license in the state of blank.” Be fair about what you list as needed certification and not what you wish they had.

Do identify essential responsibilities versus other duties. This is always an area where the importance is high, but many times the understanding is low. Essential means exactly that - you must be able to do it to perform the job. To determine if a function is essential, look at the duration and frequency of a task. If it is something done only 10% of the time - it is likely not essential; but if it is done 90% of the time, then you are more likely to say it’s essential.

Don’t inflate or exaggerate items. Of course, you want someone who is more than qualified, but don’t overinflate a job description to get that type of person. Your job description is meant to serve as the minimum qualifications for the position. Also, avoid exaggerating or subjectively identify tasks. Don’t say ‘heavy lifting’ when in fact you can say able to lift over 40 pounds.

Don’t keep it the same forever. Your job description should change as times change. In fact, in today’s world of COVID19, many job descriptions that listed office work being done in an office is no longer the norm; working from home is the new norm. Make sure your job description reflects your current position.

Don’t write it yourself. We all know that you can do everything at your business. But we also don’t believe that you really do these jobs anymore. Get your employees and managers to help write up a current job description. And yes - we also know that no one wants to write a job description - but it is needed.

For some reasons, many employers think that they will be able to get the ‘real story’ from a past employer. Many employers believe that when we check references, then all bets are off and we can ask anything we want. The truth is that references have the same guidelines as the interview.

When you call to check references, only ask questions that you could ask in an interview. Focus on questions that involve:

• work ethics;
• punctuality; and
• teamwork.

When it comes to reference checking, focus back on the interview basics too. This means to make sure you have a written list of questions you ask; and to also take notes. Lastly, make sure you have permission to check references. This should be part of your application, and it should clearly state that you are allowed to call references that they provide.

Don’t try to get unauthorized information from a reference. Only because I have been on the other end of the calls, do I know that employers will ask questions like, “Come on, you can tell me - were they really a good employee? I mean seems like she is so young, I bet she goes out all the time.” Keep the questions straightforward and focus on the job. Always avoid any questions that involve race, color, national origin, age, gender (including pregnancy and sexual orientation), physical ability, religion, and marital status.

There are basically two outcomes from an interview. They either get the job or they don’t get the job. Ok, I can see that maybe they get a second or third interview - but ultimately you either hire them or pass on them. Best practice says that you should formally identify either of these options.

If you are going to offer them a job, then you should write up a conditional letter of employment. The key word is ‘conditional.’ What is the job conditional on? It depends, but probably would include:

• criminal background checks;
• satisfactory references;
• verifying other info in application; and
• proof of eligibility to work in the US.

Plus, the conditional offer also allows you to determine that your prospective applicant is still available and wants the position. Make sure you include the starting salary in your conditional letter as well as your expectations, such as schedule and start date.

If you just don’t want to hire them, then let them know. No one likes to sit around waiting, and there are many cases where an applicant makes a claim, they ‘missed’ another job opportunity because they thought they were still in the running for another job.

When you send a rejection letter, just keep it simple and neutral. There is no reason to ever list actual reasons why they were not the correct candidate. In fact, by listing specific items, you lay the groundwork for them trying to prove why your items listed were not correct. Just keep it simple, possibly by stating, “Thank you for applying, but we have decided to pursue other applicants.”

COVID-19 has brought lots of changes - and now it may be bringing us new jobs. As a business, you may see record numbers of job applicants in the coming months. While this potential bigger employee pool means you have more to choose from - it also means employees will have more employers to choose from as well! Use the information set forth above so you can create your own internal hiring process. More than just a process - you can have a process that actually helps you hire better applicants and keeps you legal! Now, get ready to start hiring people - and get ready to do it the right way!

Want to ask a question related to hiring, interviewing, or on-boarding? Join Poul Lemasters, NCBVA Legal Counsel for a 30 minutes NO-CHARGE Q&A session.

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