Overview - Avoiding Legal Landmines in Recruiting and Hiring: Federal

Authors: Adam W. G. Freed and Anthony J. Oncidi, Proskauer Rose LLP

Summary

• When advertising the job and drafting job applications, employers must refrain from using language that discriminates against applicants on the basis of protected characteristics. See Recruiting.
• Employers must walk a fine line between conducting necessary background screening and testing to avoid hiring employees who are at risk of creating legal liability for the company and overstepping into an employee's protected privacy rights. See Preemployment Screening and Testing.
• Employers should conduct criminal background checks and contact references so as not to fall victim to negligent hiring claims. See Preemployment Screening and Testing.
• When interviewing and selecting job candidates, employers must focus on the individual's capacity to meet actual job requirements and not ask questions or make decisions on the basis of protected characteristics. See Interviewing and Selecting Job Candidates.
• Generally, employers are not required to adopt affirmative action plans, although the government is entitled to insist that employers adopt affirmative action plans as a condition of receiving federal funds or contracts. See Affirmative Action Planning.
• Job offers should detail the terms and conditions of employment, provide explicitly that the employment is to be at-will, terminable at the will of either party with or without cause and with or without notice, and also address any conditions that must be met before employment begins. See The Employment Offer.
• Employers should be aware of the risks involved with hiring independent contractors, leased employees, underage workers and undocumented immigrants. See Terms of Employment.
• Employers should have an orientation checklist of all the tasks that must be completed for each new employee, and follow best practices to ensure that each new hire has a positive start toward becoming a long-term, loyal employee. See Onboarding and Orientation.
• Employers should prepare every new hire document prior to the employee's first day of work, such as mandatory federal and state forms as well as documents specific to the employer. See New Hire Paperwork.
• Employers must maintain an applicant and personnel file, in either paper or electronic form, for each employee for the appropriate period of time. See Recordkeeping.