Managing the New Legal Landscape Impacting Recruiting

With a new presidential administration, employment lawyers always promise a great deal of changes affecting recruiters. But at this moment, our current status looks like this: 🤷🏻‍♀️. The administration is dealing with dramatically shifting priorities (ahem, pandemic) right now, so many of the new laws and requirements employment lawyers predicted are on hold. But only temporarily, and that shouldn’t stop recruiters from getting ready for what’s to come.

At ERE Digital, happening Sept. 23-24, I’ll be moderating a panel that will include TA leaders Carol Morrison of Best Buy and Rob Navarrete of Willis Towers Watson to hash out some what these changes are and how to handle them. Here’s what I expect to come down the pike for recruiters:

Vaccine Mandates

The Biden Administration is not shy about twisting employers’ arms on vaccinations. Federal contractors with employees located at federal sites must require vaccines. Non-onsite federal contractors may be next. Senior living facilities that receive Medicare or Medicaid funding will be required to mandate, too. And increasingly, employers are requiring vaccinations on top of the incentives they provided when vaccines became available. Asking for vaccination status during the recruitment process may soon become standard, so it’s important to think through how to best perhaps infuse it into your hiring process.

Managing Accommodations

Candidates may need numerous accommodations related to going back to the office, leaves to care for kids who couldn’t get vaccinated and are now sick, other caregiving issues, accommodations for vaccines, long Covid, etc. As a result, recruiters are going to need to be capable of engaging in an interactive process that includes coaching hiring managers when candidates make such requests.

The Wage Gap

Nearly everyone agrees that we must work to eliminate the wage gap. Efforts include closing loops, including passage of Paycheck Fairness Act by the U.S. House, requiring pay ranges in job postings, including Colorado’s law doing just that, and prohibiting employers from asking about salary history. Recruiters should be leading the way on this issue.

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Reporting on LGBTQ+ Status

With the more-than-welcome Bostock decision, LGBTQ+ status will be added to EEO-1 and affirmative-action reporting. Period. End stop. So how does an application process ask for this status? Historically, the EEOC has allowed employers to guess on someone’s status, but will that be OK for LGTBQ+ status? Eek!

Marijuana Laws

New Jersey joined Nevada and New York City in prohibiting pre-employment marijuana testing or use of a positive marijuana test to rescind a job offer. With 91% of Americans believing marijuana should be legalized in some form, should employers test in the recruitment process at all?

There are oodles more changes that could happen over the next year. Staying on top of them is almost a full-time job. That’s why I hope you’ll join me for what will be an informative panel to help you navigate current and upcoming legal developments and how they impact recruiting. Join me, Carol, Rob, and a host of other practitioners for what I know will be a great event! Get 10% off registration here

Kate Bischoff, ERE's legal columnist, is an overly enthusiastic, sarcastic, and opinionated management-side employment attorney and human resources professional. She works closely with management, HR, and technology companies to improve organizations and make it easier to recruit and retain talent through easy-to-understand policies, easy-to-use technology, and easy-to-explain compliance initiatives.

Prior to starting her own business, Kate served as the HR officer for the Consulate General Jerusalem and U.S. Embassy in Lusaka, Zambia. Kate has also been recognized by The New York Times, CNN.com, Wall Street Journal, USA Today, National Public Radio, and other journalistic sources as a leading authority on harassment, technology in the workplace, and employment law.

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