Avoid These 6 Recruiting-Related Legal Issues

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Danny Kellman

Negligent hiring lawsuits have increased in the last two decades and employers have been forced to respond to them. Not being in the know about the latest hiring rules and regulations has never been so costly.

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On paper, recruiting a new employee might appear to be a simple process. Post the position on a job portal, request resumes, select a few who fit the bill, invite them for an interview, shortlist a few, check references, and finally present the offer letter to one—or more depending on the number of vacancies. Sounds simple enough right? In reality it is anything but simple.

It is an extremely complex process, and every step of the way you need to be aware of certain legal implications. Even the questions that you ask during an interview need to be carefully considered, lest they be considered discriminatory. Every step mentioned above needs to adhere to legal requirements. Failing to do so can swiftly land you in a legal mess. Let’s start at the top and examine six key legal issues a recruiter needs to be wary of during recruitment and selection. Please note that I am not a lawyer, but rather a concerned HR professional who wants to prevent her peers from making unnecessary mistakes. When in doubt, please consult a lawyer.

Job Posting

The wording of the job posting, be it in a newspaper or a job portal, needs to be carefully framed. It shouldn’t give preference to a person’s race, color, religion, sexual orientation or even political belief. This is guarded by the U.S. Equal Employment Opportunity Commission (EEOC). It is illegal to discriminate against an applicant based on any of these factors. Some of the other parameters are gender, age, and disability. EEOC also protects employees and job applicants from the following:

a) Harassment based on any of the discriminatory parameters

b) Retaliation in case they file a formal complaint regarding discriminatory practices, or assist with an investigation on similar lines.

Pre-Employment Assessments

Many companies require potential hires to take part in a pre-employment assessment, an area ripe for recruitment related lawsuits. Assessments need to avoid the following:

  • Discriminate or adversely affect a protected minority
  • Require unreasonably high or restrictive standards that are not job-relevant
  • Invade Privacy

In order to prove test validation, an employer must conduct a statistical study that proves that the pre-employment assessment measure what it is purported to without adversely impacting a protected group. As an employer, when choosing a pre-employment or talent assessment provider, it is extremely important that the test publisher can prove test validation.


The questions you ask during interviews need to be carefully framed. Like the pre-employment assessment, interview questions need to be carefully selected, so as not to be considered discriminatory. You also need to explain the job requirements in such a way that it provides equal opportunity to every applicant. For example, if the job requires the incumbent to be on call 24/7, state that explicitly, instead of queries like, "Do you pick up your kid from school?" In cases of disability and religion, the EEOC specifically states that the employer needs to provide reasonable accommodations for employee or job applicants’ disabilities or employees' religious beliefs, unless these type of accommodations create significant difficulty or adds unaffordable expenses for the employer.

Checking References

Abide by this golden rule: Do no ask any questions of references that you can’t bring up during an interview. You can’t ask an applicant about his/her disability. Similarly, you can’t ask a former employer the same question. Instead, inquire about punctuality, performance level, work ethics and the ability to work as part of a team. During background checks, make sure you keep in mind both federal and state laws. For example, in some states like California, Connecticut, Hawaii, Illinois, Maryland, Oregon and Washington, it is illegal to reject an applicant based on their credit history. In other states it is legal.

Final Offer

While making a formal job offer to an applicant, ensure that the pay offered is based strictly on the skills and responsibilities required for the job. In companies that have a union, the pay is often calculated on seniority or quantity/quality of production. It shouldn’t be based on any of the discriminatory parameters mentioned earlier. The U.S. Department of Labor regulates legal issues related to wage structure, including minimum payment, overtime payment and severance packages. The person in charge of human resources in your company should be aware of these. Most small businesses do not have a formal human resources department in place. You can contact any of the small business liaisons of the U.S. Equal Employment Opportunity Commission and they can answer any questions you may have.

Other Legal Mechanisms in Place

Besides the general law that covers every job applicant, there are certain laws for specific groups of employees or specific professions. The recruitment and hiring of law students or lawyers is overseen by the National Association for Law Placement (NALP). Any company that has a union system in place should be aware of the National Labor Relations Board, an independent federal agency that has the authority to enforce the National Labor Relations Act (NLRA).

Discrimination is the biggest concern as far as the legal issues related to recruitment and hiring are concerned. The most important prerequisite is equal opportunity for every job applicant to eventually land the job. Every person connected to the hiring process should be aware of the above illustrated legal issues. Besides the legal ramifications, the reputation of a firm suffers if instances of discrimination come to light. Merit should be the only basis of recruitment, and should be ingrained in your company’s recruitment process.

Over to You

What legal issues are you most concern about?

Danny Kellman manages the Pre-Employment HR Metrics, Project Management and Sales team at The Human Capital Centre of Expertise (HUCACE), pronounced "UKC." Check out the company blog here. Danny is a strategic HR professional and consultant with over 10 years experience in different HR functions – blending and leveraging the right amount of science, technology and emotional intelligence into efficient and effective recruitment strategies for global based brands. In providing powerful scientific insight, HUCACE helps HR professionals making informed decisions at the hiring stage.