Introduction

Every employer goes through the tiring and time consuming process of hiring new employees. Employers make decisions every day concerning recruiting, interviewing, and hiring based upon the needs of the employer. This process is part of one of the most important decisions made by every company. Yet, frequently, employers carelessly hire employees either by using improper or ineffective procedures or by failing to exercise the proper effort and time in the hiring process. You can save yourself much time and aggravation in the future if you take the time and care to effectively recruit and hire new employees.

Tip #1 – Don't Hire Someone You Don't Like

This may sound simplistic, but it is important. Follow the old rule – "when in doubt, don't." If your better judgment tells you not to hire an applicant for some reason, then do not hire the applicant. When reviewing applications and interviewing, beware of trouble signals. These signals will often tell you that an applicant is not the best fit for the position or the company. Frequently, these trouble signals hint at an employee's poor performance which inevitably results in termination and another employee search. If you are concerned about a potential discrimination case during the process, remember that it is usually easier to defend a refusal to hire case than a termination case. Trust your judgment.

Tip #2 – Do A Thorough Background Check On Each Resume

Very often employers overlook the usefulness of the applicant's resume. Many times employers do not verify the information contained in an applicant's resume because of the time and effort required. But you should check the applicant's previous employment because applicants often do exaggerate or even lie when preparing a resume. It is very important to verify the information supplied by the applicant, particularly the applicant's education and work history. This is the best means to verify an applicant's competence and experience. Failure to verify this information can lead to legal and business related problems for you if you hire an incompetent applicant for employment.

Tip #3 – Take The Time To Conduct Thorough Interviews

Interviews are a very useful tool for employers during the hiring process but are often times misused. Good interviewers are able to screen out unqualified or dishonest applicants during the interview phase. Good interviewers are also able to do this without involving topics prohibited by federal or state law such as discriminatory or harassing questions. (Prohibited topics are more thoroughly analyzed below.) To effectuate effective interviewing you should provide assistance and training to your managers that conduct interviews. The best way to improve interviewing skills, as with other things, is through practice. If significant time passes between interviews, then the interviewer is likely to lose his or her edge and some effectiveness. By providing practice and training you not only improve the abilities of your managers to effectively interview, but also protect yourself by consistently reminding your managers of the prohibited topics and conduct under Connecticut and federal law.

Tip #4 – Protective Measures In Applications

An employment application is a vital document because it can give you your first impression of the prospective applicant but also conveys information to the applicant which may be useful in the applicant's decision making process. But you can use the application to your benefit and protection if you design it carefully. First, you should include a statement in which the applicant certifies that all information contained in the application, and attached resume if applicable, is true and correct. This statement should further indicate that any misrepresentations or omissions are grounds for termination whenever discovered. Second, the application should contain a statement authorizing the employer to verify all information on the application. The statement should also fully release the company from any liability resulting from the verification process. Third, the application should also contain a statement confirming that the employment is at-will and that employees are free to resign or be terminated at any time. The statement should also inform the applicant that neither the application nor other personnel forms constitute an employment contract.

Tip #5 – Prohibited Topics Under State Or Federal Law

As mentioned above, there are certain topics about which you may not inquire either on a job application or during an interview. Generally, these topics include race, religion, age, disability, and sex. Discrimination on the basis of any of these attributes is unlawful under state and federal law. The problem for you is that perceptions of questions can differ among applicants thereby creating potential problems. Therefore, in order to protect yourself fully you should make efforts to avoid inquiry into the above mentioned topics and related topics that could amount to discrimination or be perceived as discrimination on the basis of one of the above mentioned attributes.

The following questions could amount to legal trouble and should be avoided. (See if you can guess why.) This list is not exhaustive.

Maiden name

Spouse's name or occupation

Widowed, divorced or separated

Date of birth

Color of eyes and/or hair

Gender

Height

Weight

Age of children

Arrangement for care of minor children

Plans to have children (Pregnancy Arrests – inquiry is allowed but the information can only be made available to members of the personnel department and the person in charge of employment)

Felony or misdemeanor convictions

Citizenship

Availability to work weekends

Physical disabilities, illnesses

Psychiatric hospitalization

Membership in labor organization

Sexual preference

Candidate for public office

Smoking

These questions can be interpreted to seek information about the forbidden attributes mentioned above. As you know, the penalties for discrimination are severe and often discrimination is not overt or clear. Discrimination is often subtle and clandestine. Questions about the topics listed can amount to or be interpreted as subtle discrimination and should be limited.

Tip #6 – Be Careful With Reference Checks

Checking references is often more difficult than it seems. Former employer are reluctant to disclose information to prospective employers for fear of facing defamation lawsuits in the future. Therefore, reference checks are often not fruitful because you will only get the applicant's date of hire, date of separation, job title, and salary information. This does not disclose much useful information to you.

You may be able to have an applicant execute a "reference authorization waiver and hold harmless agreement." By executing this, the applicant authorizes the disclosure of past employment information and releases both the prospective employer and the previous employer from liabilities arising from the release of such information. These agreements do have pitfalls though. The authorization must be signed by the job applicant, must release the employer requesting the information and the employer releasing the information, and must clearly specify the type of information that may be divulged. The information released should only be information covered by the release. In this manner, you would be able to obtain more useful information from references that can be used in making your employment decision.

Tip #7 – Don't Use Polygraph Examinations

In general, Connecticut law prohibits employers from requiring or requesting that employees or applicants undergo lie detector tests as part of an employment application. (An exception is made for applicants for non-civilian police department positions for state or local governments.) The statute is broadly worded and goes beyond the simple notion of a polygraph. The statute forbids the use of "any mechanical or electrical instrument or device used or allegedly used to examine, test, or question" individuals for truthfulness. As you can see, this definition encompasses devices other than a polygraph.

Federal law also generally prohibits polygraph testing by most employers. The federal statute has been made applicable to private employers. However, this statute contains exceptions that allow an employer to conduct testing of an employee reasonably suspected of theft or other workplace problems. Obviously, though, because the Connecticut law that does not contain many exceptions, the safest course for you is to simply avoid the use of devices designed to evaluate an applicant's or employee's truthfulness.

Tip #8 – Limit The Information Sought In Mental And Physical Tests

Tests should measure only the skills needed for the job and not seek to determine if an applicant has a disability. (Discriminatory!) Tests conducted by employers may not eliminate the physically and mentally disabled, but tests that are related to the job under consideration are okay. Employers may give and/or act on the results of a professionally developed ability test provided that the test is not used as a means of implementing unlawful discrimination. If intelligence tests are administered, they must be reasonably related to the job qualifications and not based on general intelligence alone.

If tests are administered, the same criteria must be applied to all applicants for a specific job position. You must attempt to find tests that test for future job performance but do not screen out members of protected classes. Furthermore, it may be necessary for you to provide accommodations with the testing to ensure that the tests actually measure the abilities that they are intended to measure.

Tip #9 – Preemployment Physicals

An offer may be conditioned on the results of a medical examination provided that the examination is required of all newly hired employees in the same job category. The examination must be focused solely on determining whether the applicant is capable of performing the essential functions of the job with reasonable accommodation. You may administer this examination prior to the employee commencing work.

Tip #10 – Be Fair And Objective

As mentioned already above, discrimination in the workplace is illegal. This includes the hiring process. Therefore, you need to be fair and objective when making your hiring decisions and implementing your hiring process. Connecticut law and federal law prohibit employment discrimination on the basis of age, race, color, religion, national origin, sex, and disability. Under state law, there is an exception for cases of "bona fide occupational qualification or need." This exception was meant to be an extremely narrow exception to the general prohibition of discrimination. To apply this exception, you must demonstrate that under the procedure used, no member of the class excluded is physically capable of performing the tasks required by the job.

To avoid problems with these laws, use fair and objective criteria in making your employment decisions. Keep records of all job applicants whether they underwent serious consideration or not. These records should clearly demonstrate how applicants were evaluated and why they were or were not chosen. (Likewise you should maintain such records when employees are disciplined, considered for promotion, etc.) You should maintain these records even after an employee is terminated – at least one year. By maintaining these records, you will be able to demonstrate that you employed fair and objective criteria in the hiring process as well as at other times during an individual's employment.

Conclusion

These ten tips should provide you with some guidance in implementing an effective job hiring process. Because your role in hiring is important and should be taken seriously you need to know the limitations of your inquiry and the legal problems that could arise for you and the company if you are not cognizant of the safeguards and protections included in the law for applicants. By understanding your limitations and enhancing your own hiring experience through practice and training, you can provide yourself with the skills to implement a proper and effective hiring process.

Reprinted with permission of publisher. First appeared in Connecticut Employment Law Letter (January 2002). For subscription information, call (800)274-6774.