Finding the right employees requires careful attention to legal details
Hiring trustworthy, competent employees is critical in any business. If treated well and compensated adequately, the right hire can be an asset to a growing business; the wrong hire could be a liability.
Poor decision-making in the hiring process can damage a company’s reputation, cause losses in efficiency or inventory (including time spent training a replacement) or even result in theft or a lawsuit. Here are a few basic considerations to point employers in the right direction as they make hiring decisions.
While employers must understand the legal considerations applicable to the hiring process, the goal is to hire the best possible employee, which is more of a personnel issue than a legal problem. Having the right procedures in place, and taking the process seriously, reduces the odds of hiring a problematic employee.
Beware of Red Flags
Employers should require all applicants to submit a written application. Carefully review the application for red flags, such as gaps in employment, lack of information about past employers, sloppiness and history of declining pay. Managers want employees who pay attention to details. For example: Did the applicant properly fill out the application? Contact the applicant’s prior employers and other references. They may not share anything, but taking 30 minutes to make those calls may pay off in the long run.
Applicants’ Legal Rights
Employers must comply with anti-discrimination laws during the application process and throughout employment. Federal and state laws prohibit discrimination in hiring based on race, national origin, gender, pregnancy, age, disability or religion. Many local jurisdictions protect additional characteristics, such as sexual orientation and family status. Therefore, it is important to avoid questions related to these protected classes. Interview questions should focus on work-life rather than personal-life. It is also important to develop job descriptions prior to hiring so the essential functions of each position are clear.
Don’t Go Digging
Employers need to be familiar with the laws restricting an employer’s ability to dig into an applicant’s past. The Fair Credit Reporting Act requires employers to provide certain notices and comply with other procedures — such as “pre-adverse action” letters — when an employer obtains a background check. Many states and cities restrict employers’ ability to ask about past criminal convictions on job applications or before a conditional offer of employment is made — so-called “ban-the-box” laws. Many states also restrain employers’ ability to require access to the employee’s social media accounts. No law prohibits an employer from “Googling” an applicant, but doing so can be risky because it may reveal protected information about an employee.
Let the applicant do 80% of the talking in an interview. Be creative with the questions, but remember to avoid prohibited areas, such as gender, sexual orientation, marital status, religion and race. Consider taking applicants on a tour of the workplace to see how they interact with other employees, or allowing current employees to also interview the applicant, as long as they are trained on the legal restrictions.
The employment relationship is contractual in nature. Absent an agreement to the contrary, the employment terms are “at will,” meaning both employer and employee can terminate the relationship for any reason or no reason at all (laws may vary state to state in this regard). However, this could change to the extent that the employer makes any promises or guarantees. Employers should avoid saying things like “as long as you do good work, you will always have a job here” or “we are hiring you for a one-year project.”
During the hiring process, the employer should also consider whether it is advisable to enter into one or more of the common “restrictive covenants,” including non-competition, non-solicitation or non-disclosure agreements.
Generally, a non-competition agreement is a contract in which the employee agrees not to conduct any business in competition with the employer’s business for a period of time after the employment relationship ends. It is the most restrictive of the three agreements and the most difficult to enforce. Some states impose severe restrictions on non-competition agreements, making such agreements far less useful for employers than they used to be.
In a non-solicitation agreement, an employee promises to not solicit other employees or customers of the business for a period after the employment ends. In a non-disclosure agreement, the employee agrees to keep any confidential information they have access to (such as customer or supplier lists) confidential after they leave employment. Employers should consult an employment law expert to make sure any agreements are both useful and legal before using them.
Clarence Belnavis is a partner in the Seattle and Portland offices of Fisher Phillips (www.fisherphillips.com). He is a trial attorney with a primary emphasis in employment litigation, including disability, racial and gender discrimination, retaliation, sexual harassment and wrongful discharge. He also represents employers in wage and hour claims, employment class actions and traditional labor matters.
Alex Wheatley is an attorney in the Portland office of Fisher Phillips. He specializes in representing businesses in the cannabis industry to implement effective workplace policies.