A hiring policy is a statement of the overall practices, policies, and processes that a company uses when it hires employees. Of course, this is different for each type of business, but there are undoubtedly similarities across businesses as well.
A company hiring policy can also be subject to change within one business. For instance, the company might employ one set of hiring policies in the summer when their business is “booming” and another during winter months when the business is not as active. In addition, hiring policies should be constantly updated to stay current with changes in the applicable law.
A business definitely needs to employ hiring policies that conform to local, state, and federal laws. For instance, the company cannot employ policies that discriminate on impermissible grounds in making hiring decisions.
In addition, experts in best business practices recommend putting a hiring policy in writing. They identify several advantages to putting a hiring policy in writing as follows:
- It can promote more efficient decision-making;
- It helps make sure that decisions are consistent throughout an organization and that all the players in the hiring process share a common understanding of policies and procedures;
- It can help develop confidence in a company’s hiring process;
- It helps employees engaged in hiring avoid obvious errors;
- It is an opportunity to confirm a company’s commitment to equal employment opportunity and compliance with the laws enforced by the Equal Employment Opportunity Commission (EEOC);
- It can be used to train hiring managers to operate consistently and hopefully make better hires.
What Are an Applicant’s Legal Rights During the Hiring Process?
All job applicants have legal rights, even when they have not become actual employees. Under federal law, an employer cannot discriminate against a job applicant based on their gender, race, age, national origin, pregnancy status, disability, or religion.
Courts have interpreted Title VII of the Civil Rights Act of 1964 as prohibiting discrimination on the basis of sexual orientation and gender identity. In some states, employers cannot discriminate against potential employees based on their sexual orientation.
Employers must follow these rules and regulations throughout the entire process. This means the employers cannot discriminate in the job ad, in the interview, and in the final selection of the employee.
Can Employers Take Into Account an Applicant’s Disability During the Hiring Process?
The federal Americans with Disabilities Act of 1990 prohibits discrimination on the basis of a person’s disability. It applies to all employers, public and private, with 15 or more employees. That includes state and local governments regardless of the number of employees that they have.
Although an employer cannot discriminate against a job applicant based on their disability, an employer may take into account an employee’s disability during the hiring process if the applicant’s disability makes them unable to perform an essential job function with or without reasonable accommodation. For example, an employer might justify not hiring someone if they are not able to engage in heavy lifting, and heavy lifting is an essential job function.
Of course, an employer must provide a reasonable accommodation for the known physical or mental limitations of an applicant who is otherwise fully qualified but has a disability. An employer can be excused if making the accommodation would impose an undue hardship on the business, which would impose a significant difficulty or expense.
What Laws Must Employers Follow During the Hiring Process?
There are a variety of federal and state laws that employers must follow during all phases of the hiring process. These phases include the job advertisement, interviewing, investigating, and final selection of employees. Employers must do the following:
A good hiring policy should include the steps that should be followed so as to avoid hiring applicants who are not authorized to work in the U.S. It is perfectly legal to ask an applicant if they are legally authorized to work in the U.S. and not to hire a person who is not authorized to work.
It is important to complete the federal form I-9 for each new employee when they first join the company. If a person’s authorization expires, they should be verified again. In addition, it is recommended that an employer perform routine audits to avoid unpleasant surprises.
An additional security measure is to participate in the E-Verify system. The Social Security Administration (SSA) and the U.S. Citizenship and Immigration Services (USCIS) administer the E-Verify program. It is voluntary except for employers who have federal contracts and subcontractors. In their cases, participation is mandatory.
The E-Verify program can be accessed online, and it lets employers electronically verify the eligibility of newly hired employees and/or employees assigned to a federal contract. Using the system is a good way to avoid hiring people who are not authorized to work in the U.S.
What Are Some Illegal Hiring Practices?
Some illegal hiring practices may include:
- Not reporting hiring information to tax authorities or other government agencies that regulate businesses as necessary;
- Breaching previous employment contracts or hiring agreements with clients;
- Using employment discrimination as a basis for sorting hires;
- Illegally obtaining hiring information from competitor companies;
- Hiring illegal immigrants who are not authorized to work in the U.S.;
- Using illegal interview questions in interviews of the candidates.
Can Employers Run a Background Check During the Hiring Process?
Employers may run background checks on potential employees during the hiring process. However, every state has different laws regarding how background checks may be conducted. When doing background checks, all employers must be careful not to invade an applicant’s privacy.
Then, there are laws regarding the use that may be made of information learned from a background check. For example, some states do not allow employers to use arrest records when making employment decisions. Also, some states, such as California, do not allow employers to run background checks that go beyond 7 years into the past.
Are There Any Legal Consequences of Invalid Hiring Policies?
Failing to institute proper hiring policies can result in legal consequences, such as civil fines or other business-related consequences. Also, people who have been affected by illegal or invalid hiring practices may have grounds for filing a lawsuit seeking an award of money damages to compensate them for any losses they suffer.
Do I Need a Lawyer for Help With Hiring Policies?
Understanding the best practices in hiring policies can present various challenges. A number of state and federal laws are involved in the hiring process. It is a good idea to include an employment lawyer on your team if you are crafting a hiring policy.
LegalMatch.com can connect you quickly to a lawyer who can answer any questions or explain any legal issues involved in hiring policies. Your attorney can help you avoid expensive problems by providing you with sound legal advice as to what your hiring policy should and should not include.
