Ready, Set, Hire: An Overview of Legal Issues in the Hiring Process for Businesses (Part 1 of 6)

So, you are ready to hire a new employee to supplement your growing business. This is certainly an exciting time for you and your business. However, as you may already be aware, hiring an employee presents a variety of potential legal issues. Over the next several weeks, we will explore these issues in a series of blog posts, today discussing job posting and interviewing. In future blog entries, we will discuss topics including insurance, compliance posters, post-offer/pre-employment physical examinations, background checks, social media and hiring, and discrimination.

Advertising an Open Position

Once you have decided to hire a new employee, the first step is likely to be advertising for the job in print or online media. It is important to remember that federal laws regarding discrimination on the basis of age, race, gender, religion, national origin and disability are applicable throughout the hiring process. This means that employers are not permitted to discriminate on the basis of any of these protected classes unless there is a bona fide occupational qualification that permits you to discriminate on any of these bases. In the case of disability, before even posting for an open position, it is essential to ensure that your job descriptions are up-to-date and accurate. Otherwise, it will be difficult, if not impossible, for you to avoid running afoul of the Americans with Disabilities Act, as this federal law requires employers to evaluate whether a “reasonable accommodation” can be made, considering the physical requirements of the job.

Interviewing a Potential Employee

Once you have set out to find the perfect employee to fit your company’s culture, you will naturally begin the interviewing process. While there are few hard and fast rules regarding interviewing, an employer must be sure that the questions asked during the interview process are not likely to elicit information about a protected class, particularly age, religion, or disability status. Naturally, employers are unable to guarantee that these topics will not be brought up by the applicant, but should take great care to avoid any appearance that these factors will be considered in the hiring process. Many of the best intentioned employers find themselves on the wrong side of an allegation that they illegally discriminated against a prospective employee asking the wrong questions during the interview process. Therefore, it is critical that your intake documentation reflects a neutral reason for rejecting the applicant.

In summary, employers must be aware that, even at the early stages of hiring a new employee, federal, state, and even local laws regarding discrimination apply. It is equally important to recognize the value of legal counsel to discuss these issues in a proactive manner to both ensure compliance and mitigate future exposure.

In the next post, we will identify and provide an overview of both mandatory and recommended insurance, and discuss the mandatory compliance posters for all Pennsylvania employers.

This is a guest contribution by Eric J. Stark, Esq., of Caldwell & Kearns, P.C. in Harrisburg, PA. You can contact him via email or at 717-232-7661.

Caldwell & Kearns, P.C. is located at 3631 North Front Street, Harrisburg, PA 17110. They specialize in real estate, employment, business, and family law. Visit their website for more information.