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The Challenge of Hiring the Right Employee

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Hiring the right employee can be a challenge. When screening potential employees, you want to:

  • make sure the "chemistry" is right between your company and a new employee.
  • hire a trustworthy individual.
  • hire the applicant who most closely matches the job description.
  • comply with both your State's and Federal fair employment practices laws. 

Yet the question remains. What do I have to do to find the "right" employee?

Here are some suggestions to follow as you go down the path of hiring employees.

1. Use non-discrimination statements.

Use non-discrimination statements in all employment applications and advertisements for hiring.

2. Avoid asking inappropriate questions.

Avoid asking questions or making statements that are inappropriate as they can be misconstrued as discriminatory. Questions asked verbally or written on employment applications involving race, religion, age, national origin, immigration status, sexual preference, family status, and health should be avoided.

3. Include "At Will" employment statements. 

The Employment application and Employee Handbook should have an appropriate statement that employment is “at will” and that employees may be discharged with or without cause.

4. Comply with drug testing laws.  

The employment application process should include authorizations to contact references as well as to conduct drug testing from time to time. If your company has an employee substance abuse policy that includes a drug testing element, make certain that the policy complies with your state's laws.

Most of the restrictions on drug testing and substance abuse policies are found in state law. For example, the type of notice that an employer is required to give employees before implementing drug testing is governed by state law. If the drug test is positive for controlled substances, are you required to have a confirming test? How is the confirming test performed? Can the applicant for employment or the employee who has tested positive challenge the test results? Once again, all these questions are answered under state law.

Many states have specific laws concerning the confidentiality aspects of employer-required drug screening, both with respect to the actual drug screening procedures and as concerns employee medical records.

Inquiries concerning current illegal drug use may be made at the pre-offer stage unless prohibited by state or federal law. Inquiries into lawful medications currently being taken should be avoided except where appropriate on the consent form used as part of a test for substance abuse.

5. Avoid medical history questions.

Avoid asking job applicants about their medical history as this may be misconstrued by applicants. Job offers may be made subject to passing a medical examination. Remember, for disabled applicants, you may need to make reasonable accommodations for the disability if you hire the applicant.

6. Use consumer credit reports with caution.

If you have a policy on using consumer credit reports in evaluating candidates for employment or advancement, the application for employment should have an authorization signed by the candidate allowing you to obtain the report. Appropriate disclosures under the Federal Fair Credit Reporting Act must be made to the applicant.

The Federal Trade Commission has important rules about using consumer credit reports for job hiring and the use of such reports with employees. These rules include disclosures prior to receiving an applicant’s or employee’s consent to obtain a consumer credit report, and pre-adverse action and adverse action notices. Important information provided by the FTC for businesses is available online.

7. Know the rules and best practices on asking about immigration status.

No discussion on employment practices would be complete without guidance on immigration status.

While it is advisable not to ask a potential employee his or her immigration status, federal law requires employers to comply with I-9 Forms requirements in order to identify those employees who are authorized or not authorized to work in the United States.

On applications for employment and during pre-offer screening, do not ask to see applicants' driver's licenses or passports or any other document having a photo or birth date. Once a candidate accepts the job offer, you may request such documents.

I-9 Forms should not be completed until after the applicant is offered the job and the job is accepted.

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About Jay E. Eckhaus, Esq.

  • You can learn a lot about people from their social networks. Twitter / Facebook can help you learn about who the person your hiring actually is. Though do take what you learn with a pinch of salt.