Top 10 Legal Mistakes in the Hiring Process

20 May 2013

Hiring is an exciting and nerve-wracking time. Employers must be aware that there are many traps that can arise during the hiring process that can have legal consequences. This article outlines the top 10 mistakes employers make during the hiring process. The good news is that most of these mistakes can be remedied by a little time, paperwork and insight from your legal counsel.

  1. Failing to Prepare Job Descriptions.  Job descriptions serve an important purpose and should be prepared before the hiring process begins. Job descriptions are “Exhibit A” to most employment law claims, and serve as the employer’s first outline of its expectations for the employee. Without a detailed job description in place, the expectations are unclear, and it is difficult to hold employees accountable for job duties that have not been clearly articulated. Not having a position description is like playing a game where no one has the same set of instructions. Job descriptions also enable employers to determine whether a position is exempt under the Fair Labor Standards Act (FLSA), the essential functions of the position for purposes of the Americans with Disabilities Act (ADA) and serve as the guideline for any performance evaluation or disciplinary action.
  2. Misclassifying Non-exempt Employees as Exempt Employees.  Before a new employee is hired, the employer must undertake an analysis to determine whether the position is exempt or non-exempt, i.e., whether the position is entitled to overtime under the FLSA. The federal regulations include detailed descriptions of the job duties that will qualify as exempt or non-exempt. Indeed, without a position description that clearly delineates the job duties, it is difficult for an employer to demonstrate how it came to the conclusion that a position met the qualifications for being classified as exempt under the FLSA. Both federal and state governments have increased their audits of employers and are targeting whether employees have been appropriately classified and are receiving the overtime payments required by law.
  3. Classifying Employees as Independent Contractors.  Many employers have classified individuals as independent contractors without undertaking an analysis of whether the individual meets the legal qualifications for such classification. Government agencies have taken a keen interest in this issue in the past few years out of concerns for lost payroll taxes, lack of workers’ compensation coverage, and lost potential overtime payments to the individual. One cannot simply “choose” to be an independent contractor; rather, there are factors that must be considered before someone can appropriately be classified as an independent contractor, including determining whether the individual is engaged in substantially similar activities with other entities. Further, any independent contractor relationship should be memorialized in a written independent contractor agreement, which must include specific language delineated in the Colorado statute. For these reasons, it is important that any independent contractor hired by a school be evaluated for whether the individual meets the legal requirements for classification as an independent contractor.
  4.  Asking Inappropriate Questions on the Application and During the Interview.  In our experience as legal counsel, we have reviewed numerous job applications for our clients. Unfortunately, more often than not, the job applications contain questions that violate federal or state law, or are contrary to best employment practices. For example, do you ask for the applicant’s date of birth? Social security number? Graduation dates? During the interview, do you find yourself asking questions about the applicant’s marital status? Whether he/she has children? Any question that might illicit information related to the applicant’s protected status is problematic for the employer, particularly if the applicant is not hired. Employers must be aware of all the potential traps during the hiring process and avoid any type of conversation that may illicit information not relevant to the position at hand. As such, it is important that all job application forms, interviews, or assessment questions be reviewed for legal compliance and that anyone conducting an interview be trained on the traps that await and the how to steer clear of any discussions related to a protected class.
  5. Conducting a “Google” Search on the Applicant.  Differences of opinion exist as to the value of using “Google” or other Internet searches on an applicant. Some argue that there is valuable information to be learned from such searches. Others recognize that one’s “social media” presence provides minimal insight into whether the applicant can satisfactorily perform the essential duties of the position. I routinely advise clients against conducting any type of Internet search on an applicant. Often an Internet search will produce information related to the applicant’s protected status: race, sex, religion, sexual orientation, disability, etc. Once an employer obtains this information, it can be problematic as it can be difficult to later prove the employer did not make a decision based upon this protected class.
  6. Conditional Offers of Employment.  Once an employer has identified its potential hire, it should extend a “conditional offer of employment” to that individual. The conditional offer of employment identifies the position, starting salary, start date and any other information you may want to relay to the candidate, but it also advises the candidate that the final decision is conditioned upon the satisfactory completion of some additional criteria. The additional criteria will vary depending on the position, but most often include a background check, drug testing, etc. The legal reason for extending a conditional offer of employment is because certain laws dictate at what point an employer may obtain certain information from an applicant. For example, only after a conditional offer of employment has been extended to a candidate may an employer conduct a medical exam or engage in drug testing.
  7. Background Checks.  The background check utilized should make sense in light of the position for which the employer is hiring. If an employee will be required to drive a  employer-owned vehicle, or a personal vehicle for business, then the employer must conduct a review of the individual’s motor vehicle record. If an employee will be in charge of, or have access to, the employer’s finances, the school should conduct a criminal background check for certain convictions, as well as consider running a credit report. Different laws govern each of these types of background checks and the employer’s use of the information obtained. Other laws contain specific requirements for providing notice to, and getting authorization from, the candidate. Giving forethought to the appropriate background check required can assist the employer in yielding the most qualified candidate, but also requires attention to the legal parameters surrounding such inquiries.
  8. Failing to Accurately Complete and Retain Form I-9s and Colorado Affirmation of Work Status Forms.  Both the U.S. Homeland Security Department and the Colorado Department of Labor have increased their enforcement efforts with respect to making sure employers are complying with I-9 and Colorado Affirmation of Work Status forms. Failure to appropriately complete these forms, and within the legally required timeframes, can lead to significant penalties for the employer. The employer must ensure that the individuals completing these forms have the appropriate trainings.
  9. Failing to Document Hiring Decisions.  Lawyers love paperwork, and so do juries. Recent statistics show that 86 percent of juries believe that if it is not written down (or if a document does not exist), then it did not happen. Accordingly, it is imperative that employers document the hiring process and can easily justify the hiring decision based upon its written documentation. Failure to appropriately document the hiring process and decision will only lead to suspicion in the jurors’ minds.
  10. Failing to Be Consistent.  Employment claims often arise from an employer’s failure to be consistent. Inconsistency gives rise to claims of discrimination, even when no protected class may have entered into the employer’s hiring decision. In the hiring process, it is imperative that an employer treat all the applicants in the same manner, subject them to the same forms, questions, interviews and overall process — even when it may seem futile.

Often times, a few tweaks to the forms and process used during the hiring process can lead to a process that will not only yield the best candidate for the position, but also steer the employer clear from any legal claims arising from the hiring process. You expect a lot from your new employee and the attention you give to your hiring process should reflect the same.

Michelle B. Ferguson, an employment lawyer at Ireland Stapleton Pryor & Pascoe, PC, focuses on “preventative employment law.” Michelle works with private and public employers to be proactive in identifying and solving issues before an employment claim is filed. She also provides training to employers and their employees on all matters of employment law.

Michelle can be reached at (303) 628-3658 or mferguson@irelandstapleton.com.

This article is intended as general information on the topic covered, and is not to be construed as legal advice. If legal advice is needed, you should consult an attorney.