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
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