Top 10 Hiring and Recruiting Blunders by Employers

Screen Shot 2014-11-07 at 11.01.03 AMFrom the annoyance of individual discrimination charges to bet-the-company class actions, employers’ recruiting and hiring processes are fraught with legal risk. Are you guilty of any of these top 10 hiring and recruiting blunders that are committed by employers?

Blunder No. 1: Recruiting or hiring employees using “coherent people profiles” assembled by aggregators like Spokeo. Spokeo was fined $800,000 in 2012 by the Federal Trade Commission because it gathered all kinds of data about individuals — including race, ethnic background, religion, economic status, and age ranges — and sold the information to employers who used it in making recruiting and hiring decisions.

Spokeo was hit because it was not complying with the Fair Credit Reporting Act, but use of this type of information can obviously also violate state, federal, and local anti-discrimination laws, as noted by an attorney from the U.S. Equal Employment Opportunity Commission, who spoke this fall at a session on “big data” sponsored by the FTC.

Blunder No. 2: Asking applicants for their social media passwords. This is illegal in an ever-growing number of states, and a bad idea even if you live where it’s legal. As with Blunder No. 1, Blunder No. 2 could give you a lot of information that you’ll wish you hadn’t had.

Blunder No. 3: Legally reviewing “public” social media information too early in the hiring process. This isn’t as bad as Blunders 1 and 2, but it’s still a mistake — particularly if your social media review includes sources that generally contain a lot of personal information, such as Facebook. Again you may get TMI about an individual’s medical condition or the condition of the individual’s family members, about religious beliefs, about age, and about all kinds of things that you’re not supposed to know early in the process. (On the other hand, reviewing a “professional” social media site like LinkedIn should not be as risky.)

Blunder No. 4: Failure to make disability accommodations in the application and hiring process. When employers think about the Americans with Disabilities Act or similar state and local laws, it’s usually in the context of current employees. When they think about it in connection with hiring, they’re focused on not discriminating against an otherwise-qualified applicant because of a disability and not requesting medical information at the pre-offer stage. These are good things, but don’t forget that the ADA also requires that you make reasonable accommodations that will allow the individual to even apply for the job, participate in the interview, satisfy other qualification requirements, and comply with post-offer screenings like drug tests.

The EEOC recently entered into a consent decree with Wal-Mart after the discount store chain allegedly refused to consider an alternative to a urinalysis drug test for an offeree who had end-stage renal cancer.

Blunder No. 5: Failure to involve Human Resources in the recruiting and hiring process. “Oh, but HR is such an obstacle!” Yes, and you should be grateful. Think of HR as your Jiminy Cricket: HR is trying to save you from potentially devastating class action lawsuits and expensive settlements of adverse impact/failure-to-hire claims.

Of course, the operations managers are going to be the best judges of the education, skills, and experience needed for a particular job. But HR will make sure you comply with your obligations to cast a wide net and to give fair consideration to everyone without regard to sex, race, age, or any of those other things that government agencies get excited about. This is all the more important if your company does business with the federal government, because you will be expected to make sufficient recruiting efforts, not only for minorities and women, but also for veterans and individuals with disabilities.

Blunder No. 6: Use of pre-employment tests that don’t comply with the law. Of course, in the overwhelming majority of jobs, it is flat-out illegal to require a physical or psychological examination before a conditional offer of employment has been made. Other testing — for example, “personality” tests designed to measure honesty and work ethic, “intelligence” tests, or “skills” tests — may be all right, but be careful even with these.

If the test results have a disproportionate impact on applicants of a particular sex, race, or ethnic group, you could be liable for discrimination if you can’t show that the test actually measures for a trait you need for the job (this is known as “validation”) and that there is no less-discriminatory way for you to measure for that trait. This is a heavy burden on employers, and the reason that a lot of employers just don’t test any more.

Blunder No. 7: Committing an EEO faux pas in the job interview. Have you ever done this or seen it being done? Asking female candidates (but not male) about their childbearing plans and day care arrangements. Asking minority candidates (but not “majority”) whether they have reliable transportation. Bragging about your “young, high-energy” workforce, which is generally recognized as “code” for age discrimination. Asking candidates about their physical health or fitness, or where they go to church. (Not even where they “worship”!) Telling sexual, racial, ethnic, or religious jokes in the interview.

There is no excuse for the EEO faux pas. And please don’t think it’s all right if you’re in the same “protected category” as the person being interviewed. You might, or might not, get away with it under those circumstances. It’s better not to take the chance.

Blunder No. 8: Failure to conduct a background check or pre-employment drug test, and failure to comply with the laws on background checks and drug tests. If you are the only employer in town who doesn’t check criminal backgrounds or test for drugs, then you are going to be the lucky recipient of all the applicants who’ve been rejected by everybody else. But if you do conduct background checks and drug tests, you still have to make sure you comply with the laws that apply to these screenings. Many states have “ban the box” laws, which generally prohibit employers from asking about criminal convictions on the application form. The EEOC takes a dim view of criminal background checks, too, because the agency says that use of criminal background information has a disparate impact based on race, ethnic group, and sex. (Yes, sex — males tend to be convicted of crimes more often than females.)

If you ask about criminal history, you will need to conduct an individualized analysis of the information, taking into account the seriousness of the crime, the amount of time that has elapsed since the crime was committed, and other relevant circumstances. And if you use a third party to conduct your background checks, your vendor will have to comply with the requirements of the Fair Credit Reporting Act.

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As for drugs — unless you’re covered by the U.S. Department of Transportation regulations or another federal regulatory scheme, your primary concern will be compliance with the ADA’s restrictions on pre-employment medical inquiries and your state and local drug testing laws.

Blunder No. 9: Offering the best pay to the best negotiator. Studies have shown that white males are the most likely to haggle with employers over their starting salaries. Therefore, if you pay the most to the person who negotiates best . . . need I say more? (Courts have said that this is not a legitimate, non-discriminatory reason for a pay disparity.)

Blunder No. 10: Failure to hire the best person for the job. I saved the most important for last. It’s easier to say “thanks, but no thanks” to a bad candidate than to say “you’re fired” to a bad employee. Failures to hire are also generally easier to defend than decisions to fire. So try to put all that nepotism, favoritism, prejudice, and concern about “connections” aside, and choose the individual who seems to have the best education, experience, and ability to perform the job. You can even consider whether the candidate “plays well with others” if you want.

If you focus on qualifications, you may still make a mistake from time to time, but your sailing will be as smooth as possible in our litigious climate.

 

image from The Episcopal School of Texas

Robin Shea
Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.