By Edward Woodall

HOW TO HIRE Employees—RELEVANT information only, please.

Hiring the right employee is crucial for your business’s success. You’ll be relying on whoever you hire to be the face of your business, perform important work for your customers, and even handle your company’s money. Unfortunately, employers often commit unforced errors during the hiring process. In this blog post, I’ll describe some common mistakes employers make in the hiring process and tell you how to avoid them.

Asking the Wrong Questions at Interviews

An employer should be careful about the questions asked during an interview with an applicant for any job.  Other than ensuring that the applicant is qualified for the job and is someone you may want to hire, the employer should ensure that the interview elicits the proper information and does not overstep the boundaries of such an interview established by law.  Some of the major boundaries are briefly described below.

• Questions Not to Ask—Don’t ask irrelevant questions
  • Questions regarding the nature and extent of an applicant’s disability. These questions are only allowable if necessary to determine an applicant’s ability to perform a specific job without significant hazards. These questions must be related to the specific position applied for.
  • Questions regarding past or current medical conditions not related to the performance of the specific position. These questions are unlawful because they are not relevant to the position and may reflect or encourage discrimination.
  • Questions regarding an applicant’s past worker’s compensation claims. Questions about worker’s compensation claims are unlawful under North Carolina state law.
  • Questions as to whether the applicant (or their parents) are native-born or naturalized citizens (ex., What country are you from? or What is your native language?). Questions about country of origin or native-born status are unlawful because they tend to discriminate.
  • An employer cannot request or require proof of citizenship before an applicant is hired.
  • Questions regarding marital status, number of children, or childcare. These questions are not necessarily unlawful but should be avoided. However, an employer may eventually need to know such information for tax, insurance, and other purposes.
  • Employers should never ask for references from clergy members or any other individual that might reflect the race, color, religion, sex, sexual orientation, national origin, handicap, age, or ancestry of a job applicant.
  • Questions about the age of the applicant. This is unlawful because of possible age discrimination.
  • Questions about an applicant’s weight. These are unlawful generally because they tend to discriminate unless specific to job requirements.
  • Questions about an applicant’s arrest record. These are unlawful because they tend to discriminate; further, these questions may violate state or local “ban the box” laws.

• Questions TO Ask—Keep questions relevant to the requirements of the job
  • Why did you leave your previous employer?
  • Can you explain any gaps in employment history?
  • Do you have any felony convictions (provided such information is relevant to the job applied for)?
  • What is your educational background (if it is relevant to the job)?
  • Do you have the necessary licenses or permits for the job?
  • If it is necessary, are you willing to travel for the job?
  • Do you have the legal right to work in the United States?

Improperly Screening the Applicant

Employers often make several mistakes outside the interview process. You or someone you know has encountered many of the following mistakes in the hiring process. I’ll explain what these mistakes are, why you shouldn’t commit them, and how to hire the right way.

• Failure to Check References and Job History. Although some employers assume that any references or job history an applicant gives will be positive and likely not worth checking, an employer should always complete a check of such references. Checking such information and recording the results will help to quickly weed out applicants and prevent possible negligent hiring claims in the future.
• Failure to Check the Proper Background Information. Generally, checking background information, such as an applicant’s credit history or criminal history, is allowed. Be sure that the information is relevant to the job for which the applicant is being considered.  For example, requesting a credit history of an applicant who will not be handling cash or bank accounts is not necessarily relevant to the job, but checking the criminal history of an applicant who may be left alone with customers or in customers’ homes or businesses would be highly relevant.  As noted below certain background information should only be performed with the applicant’s consent.
• Consent to Check. Generally, all background checks must be relevant to the job applied for and consistently applied to all applicants.  Most of the information checks will require the applicant’s written consent.  Even though an employer is not always explicitly prohibited from conducting background information checks, the employer should always obtain the employee’s written consent prior to conducting these checks and be sure that such information is relevant to the job applied for.
  • Criminal History—Both state and federal restrictions and requirements may apply depending on the job applied for.
  • Civil Court History—Although available as public records, an applicant should be informed that such a check will be conducted. Such information must generally be relevant to the job requirements in order to influence the hiring decision.
  • Credit History—Prior written consent is required under the Fair Credit Reporting Act.
  • Military History—Under the Federal Privacy Act, service records are generally confidential and can only be released under limited circumstances. Inquiries not authorized by the applicant must be made under the Freedom of Information Act. Even without the applicant’s consent, the military may release name, rank, salary, duty assignments, awards, and duty status.
  • Drug Tests—Drug tests require consent, and state law imposes additional procedural and appeal requirements.
  • Driving History—Generally, consent is required in order to obtain an applicant’s driving history.
  • Educational Background—Educational institutions require the consent of the applicant to release detailed information.  However, they can release general information such as name, dates of attendance, degrees earned, and other activities unless the applicant has forbidden them from doing so.
  • For more information, see our article on background checks.

• Other Tests or Information. Like the checks above, these tests must be relevant to the job applied for and consistently applied to applicants.
  • Polygraph Tests—Your rights to require and administer a polygraph test to applicants and employees are severely restricted by federal law.
  • Psychological Profiles—Generally unlawful because they could lead to discrimination based on a person’s disability.
  • Physical Fitness Evaluations—Generally unlawful unless specific job duties may require certain physical abilities because they could lead to discrimination based on a person’s disability.
  • Private Investigators—Employers may often try to use private investigators to conduct the history checks and background information verifications listed above.  However, an employer should be sure that the private investigator obtains the necessary consent as well.  Private investigators will generally provide such consent forms, but the employer should also review them to ensure they are legally adequate.

Failure to Maintain Proper Documentation

Even the best hiring process is of limited usefulness if you don’t adequately document it. Employers should be careful to consistently document the steps taken during the hiring process and retain those documents for a reasonable length of time.

• Employers should ensure that they have proper job applications and consent forms as required for their employees and applicants. Such documents should properly acquire the employee’s consent to any checks of background information, including the applicant’s credit history or criminal history. Applications should specifically state that employment is contingent on the employee’s ability to prove he or she is permitted to work in the United States.
• The Age Discrimination in Employment Act requires that all employers keep copies of resumes and applications for one year after receipt. Further, application information on all the applicants a business actually hires should be kept in their personnel files indefinitely.
• Employers must retain I-9 forms for each employee either three years after the date of hire or one year after the date of termination, whichever is later.

“Negligent Hiring” Practices

Employers may face “negligent hiring” claims in North Carolina and many other states from people injured by an employee (through theft, violence, harassment, etc.) when the employer knew or should have reasonably known that the employee had such tendencies to injure.  An example of such a claim is where a contractor’s employees (who have lengthy criminal histories) steal from a house where they are assigned to work.  Suppose the owner of the house files a negligent hiring claim. In that case, the contractor must then show that it had no knowledge of the history of the employees and that it is the standard practice in its industry to not request and conduct criminal history checks of its employees.  Employers are generally advised to consider what is reasonable in general regarding the level of background investigation, even if it is not standard practice in the employer’s industry.

Conclusion

As you can see, dropping the ball during the hiring process is easy. There are a lot of moving parts, and it can be easy to lose sight of some of them. Unfortunately, this can cause your company to hire the wrong candidates or fail to hire the right ones. Even worse, making some of these mistakes can expose your company to liability under state or federal statutes. The experienced employment lawyers at Venn Law Group can help you identify risks in the hiring process, help you create a comprehensive, actionable plan for screening job applicants, and give you the tools you need to put your business on the path to long-term success.