You’ve heard this many times: litigation costs a fortune. Once you’re in the litigation maw, whether in state or federal court, there are many steps the court rules require. You cannot evade most of them, and every step of compliance takes time and costs money in legal fees (not to mention your own aggravation and disruption as you dig deep into company data for information needed for mandatory disclosures and discovery). The more aggressive you are in your tactics, the more in legal fees you will incur, and on the employer side, in particular, your own attorney fees are not usually recoverable from the employee even if you win. So, there is no fun to be had and the entire experience typically feels unfair from start to finish...as well as costing that fortune I mentioned.
To avoid unnecessarily giving money away to your lawyer or to a disgruntled (ex-) employee, take steps now to proactively identify risk areas. Risk starts at the pre-hire recruiting stage, so that is where our blog series for 2022 starts as well. Stay tuned as we walk through the employment relationships, looking at safeguards and compliance needs at each stage.
Let’s Recruit New Employees! Recruiting 101
Think Bigger and Broader
Your recruiting practices can be proof that your business has engaged in discrimination. If you limit your recruiting in ways that screen out potential applicants from certain backgrounds or groups, that can be part of the evidence used against you in an EEOC charge or lawsuit. Employers with a single employee are covered by the Civil Rights Act of 1866, which forbids intentional discrimination on the basis of race, and the Immigration Reform and Control Act kicks in at four employees to forbid discrimination on the basis of citizenship, national origin, and immigration status. (You must still require employees to prove they are eligible to work in the U.S.) Thus, if you think you are “safe” from all discrimination claims because you don’t employ fifteen employees, think again.
To find the best candidates, think beyond the places from which you typically recruit. If you usually post positions with one or two resources, post with more – e.g., schools, trade associations, TWC, newspapers and other generally available media, recruiters, or online job search services. To recruit from a more diverse pool, think of resources that may appeal to applicants coming from backgrounds dissimilar to your usual applicant pools.
While some jobs require such specific skills that “covering all bases” recruiting would be a waste of time, try to avoid recruiting in ways that limit your efforts to recruit from the broadest pool of qualified candidates.
Of course, follow internal rules, such as internal posting requirements, required notices to unions, etc. If your internal rules are limiting, update them.
Keep the Applications
Most companies don’t realize that they are required by EEO laws to keep all applications for advertised (posted) jobs for at least one year from the date the position is filled. Note: 42 U.S.C. §1981, The Civil Rights Act of 1866, applies to all employers of any size and prohibits intentional discrimination on the basis of race. The statute of limitations for a claim under that statute is four years, so the best practice is to retain all applications and job postings for four years from the date the position is filled.
Retention ensures that the applications are around if an aggrieved rejected applicant files a discrimination charge. Develop a plan to retain the applications from all unsuccessful applicants. The plan should include a system to note when the applications can be discarded in the regular course of business, assuming a hold does not apply due a live dispute. If you use a third party service to accept and screen applications, confirm that it has a reliable process in place on your behalf.
Extra credit tip: If you have not already studied up on legal requirements for maintaining various kinds of personnel records, now is a good time to do so. Requirements vary based on what laws apply to a company, the type of record, and whether a relevant dispute is active.
Define the Position
As the saying goes, you won’t know when you’ve found the perfect person unless you know who you’re looking for. Thus, before you advertise the opening, be sure you know who need: define the position and pin down the training, skills, education, and other necessary qualifications. Create a job description that covers both essential and peripheral functions, as well as the necessary qualifications (skills, certifications, degrees, past relevant experience). Don’t forget intangibles, such as a need for regular and reliable attendance during defined hours. Consider the extent to which the work can be done remotely. Focus on whether you may be unintentionally and unnecessarily screening out candidates, including those who have disabilities. You don’t have to put all of these details in your ad or posting, of course, but locking in the description will help immensely in creating postings and ads.
Be sure your job advertisements mention that you are an EEO (or "EOE") employer if you are covered by those laws. Eliminate “code words” that imply a preference for candidates with certain demographics and think about whether relics carried over from past postings can be eliminated.
Like applications, job postings themselves must be retained for at least one year from the date the position is filled. The retention period may be extended by live claims or other special circumstances.
Be Prepared to Accommodate
For employers who employ fifteen or more employees, the Americans with Disabilities Act requires provision of reasonable accommodation during the application process.
Some applicants may need reasonable accommodation to apply and/or interview. Be prepared to respond with creativity. Consult the EEOC’s “Job Applicants and the ADA” guidance as a resource.
Try to use accessible sites for as many of your postings as you can.
Identify a point person to take questions from potential applicants, and be sure that person is attuned to requests for accommodations and has been trained in how to respond.
Next Step: Narrowing the Field
Our next post will cover the key legal considerations in selecting the most promising candidates from your accumulation of applications. Stay tuned.
This Post Is Not Legal Advice
Nothing in this summary is legal advice. The content provides general information only. Always consult competent legal counsel for advice concerning your particular circumstances and needs.
Photo Credits (in order)
Photo 1: Tim Mossholder
Photo 2: Marten Newhall
Photo 3: Finn Hackshaw