10 Ways to Stay Out of Court: Rule 4 – Hire Smart

Date: November 12, 2018

Most small business owners understand that federal and state regulators impose a great deal of red-tape on all matters of employment law. But even before bringing someone on board, you should understand that federal, state and even local government may impose regulatory requirements for how you should approach the hiring process. And of course, you can avoid major problems, in the long run, by making smart hiring decisions at the outset.

Here are a few pro-tips:

  • Require job applicants from all candidates and check references;
  • Prepare a standard list of questions for your interviews;
  • Be sure to ask only appropriate questions—e., questions that shed light on the applicant’s capacity to perform functions and duties of the job;
  • Avoid questions that may reveal whether the applicant enjoys protected status under the law, such as questions that might shed light on a disability or sexual orientation;
  • Do not ask about wage or salary history, but instead ask about the applicant’s preferred wage or salary range.

You should also be mindful of the following points:

Proceed with Caution if Using Background Checks

It may be very prudent to run a background check before hiring an employee; however, there are important rules. First, if you are running background checks you should have a uniform policy of doing so, in which you obtain the applicant’s permission in writing and clearly identify the information you will be checking. But, you should know that state and local law may prohibit you from conducting a background check until after you have made a conditional offer. In these “ban the box jurisdictions,” you are permitted to revoke an offer only if a subsequent background check reveals a conviction that calls into question the capacity of the applicant to perform the duties of the job in question. For example, an employer might rescind an offer for someone who would be working with money if a background check reveals that they had been convicted for embezzlement in the past.

Regardless of where you are doing business, you should be mindful of EEOC guidance, which warns against considering arrest records because an arrest does not necessarily mean that there was any wrongdoing. Importantly, EEOC guidance provides that employers should avoid blanket rules rejecting all applicants with a criminal background. Instead, employers are advised to make individualized assessments for each applicant—considering the nature and gravity of the offense, the time that has elapsed, and any mitigating factors.

Don’t Forget to Fill-Out an I-9

All employers are required to have a completed I-9 on file for new hires. I-9 forms should be kept together so that they are easily accessible in the event of an audit. And importantly, if you realize that you failed to fill out an I-9 or that you have made a mistake, you should either fill out a new form (and attach the old, if there is one), or correct and initial where you’ve made changes. Under no circumstance should you backdate an I-9 when making changes.

For more guidance on how to stay out of court, check-out the following:

*While the information provided here is intended to be accurate, it is not legal advice. Employers are advised to seek counsel from a trusted employment law attorney.

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