Hiring Dos and Don’ts Briefly Stated
On March 11, 2020, Edgar Law LLC held its inaugural Breakfast with HR session from 8 a.m. until 9 a.m. We will be holding similar sessions on HR-related issues every second Wednesday of the month. The topic of March’s session was hiring – primarily, how best to post jobs and how to proceed with an interview. Rather than having an in-person meeting, we decided to proceed with a telephonic meeting in light of the growing concern with gatherings of any number due to the coronavirus. Although I have not heard from everyone who participated in the discussion, quite a few participants expressed a preference for the telephone session since it meant avoiding having to commute to the firm’s brick-and-mortar office. Telephonic sessions also mean that there is no cap on the number of participants, as opposed to strictly in-person meetings where participation would be capped by the number of chairs in our conference room (about a dozen). Given current circumstances, it looks like the coronavirus may be dictating another telephonic session for April’s discussion on firing. We shall see. In any event, here are the highlights of the hiring discussion:
When posting a job, do not indicate a preference for any category of person, as you risk a lawsuit by an individual who you did not hire who is protected by federal or state discrimination statutes. By way of example, do not advertise for a waitress (thereby implying that you prefer female waitstaff) or “strong, able-bodied men” for a moving company (thereby implying that you prefer male employees). Also, when posting a job, do not state that ex-convicts or anyone who has a criminal history need not apply as such a statement would run afoul of Connecticut’s so-called ban-the-box statute.
When designing an application or application process and then interviewing, avoid questions that would elicit information that suggests that the applicant is in a protected category. By way of example, avoid seeking information as to when the applicant graduated from either high school or college. If an employer has no idea what age an applicant is then the applicant has an uphill climb proving that the employer did not hire him or her because of age. To the extent possible during interviews, avoid and/or redirect discussions about personal life that would indicate whether an applicant is married, married to another of the same or opposite gender, has children, has a family member with a disability, etc. etc. To the extent that an employer can plausibly deny knowledge that an applicant is in a protected category then it is in the best position to defend itself from accusations of discrimination. Finally, understand that it is no longer permissible to ask an applicant about their salary history. If the information is provided voluntarily then you may engage in the conversation but you may not initiate any discussion of the subject.
It should be assumed that applicants being interviewed are tape recording the conversation. In Connecticut, it is permissible for a participant in a conversation to tape record the conversation without obtaining the consent of other participants. The prevalence of tape-recording conversations in the workplace is undeniable. It can be effected with the tap of a red button on a smartphone. That being said it is imperative that interviewers stick to the script of describing the duties and responsibilities of the job at issue and the interviewee’s prospects of competently performing those duties and responsibilities. The interviewer must remember to nudge all off-script discussions back to the task at hand. While it takes time and resources, interviewers should write a note to the file regarding each interview and the content of the discussion and anything noteworthy occurring. Should the interviewee claim later that something untoward happened (without the aid of a recording) contemporary notes will go a long way towards corroborating that the untoward conduct did not occur. Also, if possible, an interviewer should have a colleague sit in on the interview so another witness could corroborate the interviewer’s account of what occurred.
Finally, remember that completed applications and notes of interviews should remain on file. Consult with an attorney should you wish to discard past applications and notes of interviews. Best practices would dictate saving all hiring documents for at least 3 years, as that is the length of time required to preserve wage and hour documents, one of the longer preservation requirements for employee records. While I understand that there will be many applications and interview notes of persons who never become employees, the practice of destroying HR records no earlier than 3 years from their creation would be a safe practice. Again, consult an attorney before implementing any practice or policy of purging HR documents.
Please contact me should you be interested in joining one of our Breakfast with HR sessions in the future. I can be reached at firstname.lastname@example.org or by phone at 203.208.1017.
Be safe and well.
Disclaimer: Edgar Law LLC provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Attorney Advertising.