Overview: Employers can engage in a host of measures during the recruiting and hiring process to reduce their risk of liability. These include:
Using due diligence in evaluating qualified job applicants is crucial to avoid a future negligent hiring claim. At the same time, however, employers must be conscious that their screening measures comply with the Fair Credit Reporting Act, and do not disproportionately affect minorities and women.
Other notable HR issues affecting this area include ADA compliance if an employment offer is conditioned on a medical exam; maintaining good recordkeeping practices; and having applicants sign restrictive covenants if an employer wants to protect information that gives it a competitive edge in its industry, provided that the terms are reasonable.
Employers also must be cautious not to inadvertently convert a desired at-will employment relationship into an implied employment contract either when recruiting applicants or in making a job offer.
Trends: Employers in the nation's biggest cities as well as a few states must now take so-called "Ban the Box" laws into account. This phrase refers to the "box" on job application forms asking potential employees if they have been convicted of a crime.
Another key recruiting and hiring trend is the rise of mandatory E-Verify laws to confirm that new hires may lawfully work in the US. These laws requiring employers to use the federal E-Verify system are more prevalent in the South.
Author: David B. Weisenfeld, JD, Legal Editor
Updated to reflect Supreme Court ruling blocking the implementation of the immigration plan for certain undocumented workers.
Updated to reflect forthcoming notice-posting requirements for certain seasonal employers.
Updated to reflect forthcoming amendment to Philadelphia's Fair Practices Ordinance prohibiting use of credit information in hiring.
Updated to include whistleblower immunity notice under the federal Defend Trade Secrets Act, effective May 11, 2016.
The Society for Human Resource Management (SHRM) released a report today showing that many employers are facing increased difficulties in finding qualified applicants. The survey of more than 3,300 HR professionals revealed that 68% say their organization has had trouble recruiting in the current job market.
Updated to include retaliation protections under the state's forthcoming pregnancy accommodations law.
Updated to reflect forthcoming law granting employees the right to inspect their personnel files.
Updated to reflect forthcoming new hire requirements for seasonal employers.
Updated to reflect the 2016 VEVRAA Hiring Benchmark, a revised OFCCP directive regarding Functional Affirmative Action Plans and forthcoming revised sex discrimination rules for federal contractors.
Updated to reflect discipline concerns regarding an employee's right to take unpaid time off to respond to a subpoena, effective June 6, 2016.
HR and legal considerations for employers regarding recruiting and hiring.