|Editor’s Note: The following article is for informational purposes only and should not be substituted for legal counsel.|
As a business owner, you probably already know about laws against discriminating against a person because of sex, race, color and creed. However, did you know there are federal laws for discriminating against a person because of a pregnancy? Are you aware asking certain questions during an interview could put you in harm’s way and a federal discriminating investigation?
All managers should be informed of the do’s and don’ts of the hiring process. For added assurance, be sure to contact an attorney in your state for clear guidelines on local, state and federal laws. Generally, you must:
- Avoid illegal discrimination.
- Respect the applicant’s privacy rights.
- Refrain from making promises you can’t keep.
- Follow the legal rules for hiring immigrants, and follow the legal rules for hiring young workers.
- Fill out the necessary forms for the IRS.
Before you start interviewing, create a detailed job description with a clear, concise depiction of duties and requirements of the position. Allow interviewees to read the job description to make sure they’re qualified and interested in the position. This is important from a legal standpoint because if you terminate an employee who can’t meet your job requirements without having the requirements documented, you might set yourself up for a wrongful termination suit.
The interview doesn’t need to seem like a verbal obstacle course if you follow these three simple rules:
- Don’t ask about anything that the law prohibits you from considering in making your decision.
- Only ask questions directly relevant to the position.
- Don’t make promises you can’t keep.
Do’s and Don’ts
The following chart maps out what you legally can and cannot ask of an job applicant. In short, focus your questions on what you need to know and if the person can perform the job’s functions. Be particularly careful of after-interview chitchat. The interviewee may mention a spouse and, out of politeness, you may ask, “Do you have any kids?” Refrain from the nicety. If you later do not choose this person for the position, he may consider this the reason.
A great way to end an interview and gain important information is ask the interviewee, “That’s all I have, but do you have any additional information about yourself that you would like share?” This opens up the floor to interviewees to tell about their marital status, kids, church or anything else.
Once you’ve narrowed down your list of possible hires, you many want to run a background check on the remaining candidates before making a final decision. However, you don’t have an unfettered right to dig into applicants’ personal affairs. Workers have a right to privacy in certain personal matters, but here are a few tips:
- Inquiries must be related to the job. For example, if you’re hiring a security guard for securing the building at night, you might reasonably check for past criminal convictions. However, if you’re hiring a person for outside maintenance, a criminal background check is probably unnecessary.
- Ask for signed consent. If you ask the applicant in writing to consent to a background check it puts you on the safest ground. On the form, clearly explain what you plan to check and how you will gather the information. This gives the person a chance to take themselves out of the running if he decides he doesn’t want you to uncover certain things; more importantly, it prevents him from later claiming you unfairly invaded his privacy. If he refuses consent to a reasonable request for information, you may legally decide not to hire the worker on that basis.
There are also specific rules about certain types of information you may obtain:
- School records. Under federal law and some state laws, educational records—including transcripts, recommendations, and financial information—are confidential. As such, most schools will not release records without the consent of the student.
- Credit reports. Under the Fair Credit Reporting Act (FCRA), employers must get an employee’s written consent before seeking a credit report. Many employers routinely include a request for such consent in their employment applications. If you decide not to hire or promote someone based on information in the credit report, you must provide a copy of the report and let the applicant know of his right to challenge the report under the FCRA. Some states have more stringent rules limiting the use of credit reports.
- Bankruptcies. Federal law prohibits employers from discriminating against applicants because they have filed for bankruptcy, meaning you can’t decide not to hire someone simply because he has declared bankruptcy in the past.
- Criminal records. The law varies from state to state on whether, and to what extent, a private employer may consider an applicant’s criminal history in making hiring decisions. Some states prohibit employers from asking about arrests, convictions that occurred well in the past, juvenile crimes or sealed records. Some states allow employers to consider convictions only if the crimes are relevant to the job. And some states allow employers to consider criminal history only for certain positions: nurses, childcare workers, private detectives and other jobs requiring licenses, for example. Consult a lawyer or do further legal research on state law before digging into an applicant’s criminal past.
- Workers’ compensation records. An employer may consider information contained in the public record from a workers’ compensation appeal in making a job decision only if the applicant’s injury might interfere with his ability to perform required duties.
- Other medical records. Under the Americans with Disabilities Act (ADA), employers may inquire only about an applicant’s ability to perform specific job duties—they may not request an employee’s medical records. An employer may not make a job decision based on an employee’s disability, as long as the employee can do the job with reasonable accommodation. Some states also have laws protecting the confidentiality of medical records.
- Records of military service. Members and former members of the armed forces have a right to privacy in their service records. These records may be released only under limited circumstances, and consent is generally required The military may disclose only name, rank, salary, duty assignments, awards and duty status without the member’s consent.
- Driving records. An employer should check the driving record of any employee whose job will require large amounts of driving (delivery persons or bus drivers, for example). These records are available, sometimes for a small fee, from the state’s motor vehicles department.
Testing Job Applicants
Just like with background checks, the government dictates how you may conduct pre-employment testing, designed to evaluate skills, aptitude, personality traits, honesty, medical conditions and drug use.
Although you may conduct some testing legally, state and federal laws impose numerous restrictions on the parameters. These are often vague and open to contradictory interpretations. As a result, only use tests that are absolutely necessary.
For all tests, take care to avoid discriminating against applicants protected by the ADA. To ensure disabled persons are not unfairly screened out by your test, the test must accurately measure people’s skills, not disabilities. Below is a rundown of the do’s and don’ts.
- Skills tests: Generally speaking, these tests are legal, as long as they genuinely test a skill necessary for job performance.
- Aptitude, psychological and personality tests: Some employers use written multiple-choice tests to gain insight into applicant’s general abilities, personality and psyche. These tests are only rarely appropriate, and the use of them leaves you vulnerable to lawsuits.
- Lie detector test: The federal Employee Polygraph Protection Act generally prohibits employers from requiring applicants to take a lie detector test or asking applicants about previous lie detector tests. The law includes a narrow list of exceptions that apply to, for example, businesses that provide armored car services, alarm or guard services; or companies manufacturing, distributing or dispensing pharmaceuticals.
- Honesty tests: These tests frequently violate federal and state laws that protect against discrimination and violations of privacy. Plus, the tests are rarely reliable. Prudent employers stay away from them.
- Medical tests: Once again, to avoid violating the ADA, don’t ask an applicant about his medical history and don’t conduct any medical exam before you make a job offer. Once you offer the job, you can make acceptance conditional on the applicant passing a medical exam. Just be sure you require the exam for all entering employees doing the same job or you will be violating the ADA.
- Drug tests: Some states don’t allow them, while others stipulate drug tests are legal for jobs involving public safety or driving. Before requiring an applicant to take a drug test, consult your state department of labor.
After you select the best candidate for the position, you must fill out numerous forms to secure records and satisfy federal law:
- Employment Eligibility Verification, Form I-9: You must verify that each new employee is legally eligible to work in the United States. This is especially important since the federal government enacted the Patriot Act.
- Employee’s Withholding Allowance Certificate, Form W-4: To know how much income tax to withhold from employees’ wages, you should have a signed Form W-4 on file for each employee.
- Earned Income Credit Advanced Payment Certificate, Form W-5: If your employees qualifies and wants to receive advanced earned income credit payments, they must fill out this form.
- Employee’s Social Security Number. You’re required to document each employee’s name and Social Security number and to enter them on Form W-2. You should ask employees to see their Social Security card for verification. Do not accept IRS Individual Taxpayer Identification Numbers (ITINs) in place of a Social Security number. An ITIN is only available to resident and nonresident aliens who aren’t eligible for U.S. employment and need identification for other tax purposes. You can identify an ITIN because it is a nine-digit number, beginning with the number “9” and is formatted like an SSN (NNN-NN-NNN).
Hiring a new employee does not have to be a perilous journey if you understand the law and create a routine, legally safe process. Stay within the law and you’ll stay litigious free.
Disclaimer: This article was written as a guideline to aid in minimizing risk at self-storage facilities. Nothing in this document constitutes legal advice, nor does any information constitute a comprehensive or complete statement of the issues discussed or the laws relating thereto.
Tredd Barton is the owner of Tredd’s Software Solutions, which as been developing self-storage software for the past nine years. His company just released version 6.3.7 of its self-storage software and has expanded into New Zealand, Australia, Canada and the United Kingdom. For more information, call 724.484.7801; e-mail firstname.lastname@example.org ; visit www.tredd.com .