Hiring days are here again! Before rushing out to add scads of new staff members, take a moment to review your hiring practices - almost - Legal Trends: Practical Insights

HR Magazine, June, 2002 by Jonathan A. Segal

As the economy begins to improve, many employers are--for the first time in months--seriously considering the prospect of hiring new employees. What a relief to be adding staff, rather than conducting layoffs!

Of course, we're not fully out of the woods yet as the economy does not appear to have completely rebounded. But that can be good news: It means employers have the time to review their hiring policies and make sure they are in full legal compliance--before the next big hiring spree takes place.

This article focuses on seven common hiring mistakes and offers tips on how to rectify or avoid them.

Job Descriptions

Job descriptions often focus heavily, if not exclusively, on minimum objective requirements--such as education and job experience. However, these documents often pay little or no attention to the more subjective behavioral competencies essential to a job, such as flexibility, agility and strategic insight.

Failure to spell out these behavioral competencies can cause trouble for at least three reasons:

1. Employers often base final hiring decisions on subjective competencies. We tend to screen on the objective and decide on the subjective. If the job description does not clearly state what these subjective behavioral criteria are, then the foundation for relying on them is conspicuously absent.

2. Under the Americans with Disabilities Act (ADA), employees increasingly are seeking accommodations for emotional conditions that, they argue, interfere with their ability to meet certain necessary behavioral competencies.

"I can fulfill all of the requirements of the job, but I need to focus on one thing at a time," an applicant might say. In such a situation, if the ability to multi-task under pressure is not listed in the job description as an essential requirement, the employer may have more difficulty denying an accommodation.

3. In my experience, managerial and professional employees are more likely to be discharged (or selected for layoffs) because of deficiencies in behavioral comperencies than because of technical skill deficits. If you let go of a manager with good numbers because he is not a team player, being a team player should be listed on the job description. (It also should be a basis for evaluation.)

Employers also should remember that a job description is the first place the courts will look when determining exempt or non-exempt status under the Fair Labor Standards Act (FLSA).

The fact that a job description may not support the decision to classify a position as exempt is particularly troubling given that, in frightening numbers, employers are defending class actions challenging the exempt status of entire groups of employees.

Employers should pay particular attention to job descriptions for administrative positions that are classified as exempt. The exempt status of administrative positions often is a target for attack.

The FLSA does allow administrative employees to be classified as exempt, generally if the position holds adequate independent discretion in making business decisions. To the extent employers wish to rely on this exception, they should grant their administrative employees the necessary independent judgment and discretion--and make sure their job descriptions reflect this.

Recruiting

As the applicant pool becomes more diverse, so does the pool of stellar candidates. Employers who fail to increase the diversity of their applicant pool will exclude whole communities of talent--and may find the quality of their hires suffering as a result.

However, employers need to be careful how they increase diversity. Generally speaking, employers cannot specifically reserve a position for a woman, a minority, etc. Nor can employers hire third parties and ask them to refer only women, minorities, etc. Doing so likely will leave a business open to a viable claim of reverse discrimination.

The way to increase diversity without ending up on the wrong side of a claim is to increase the diversity of the pool of qualified applicants from which you select your candidate. If your applicant pool is diverse, the odds increase that your hires will be diverse as well.

One legally prudent way to increase the diversity of your applicant pool is to supplement (not replace) your general recruiting with efforts aimed at diverse associations, publications, web sites, etc. There are two primary benefits to such efforts.

First, targeted recruiting sends a positive message that your organization is serious about diversity.

Second, targeted recruiting can be a strong legal defense. If you hire an applicant as a result of an ad you posted on a web site geared to minorities, that applicant will have a harder time suing for racial or ethnic bias later on if things don't work out.

Application for Employment

Virtually all employers have employment applications. However, many applicants aren't required to complete the application, particularly if they are applying for senior-level positions. Another problem: Some applicants are allowed simply to attach their resumes, without filling out or signing the application.