Protect yourself while hiring: Part 2

The candidate search and interview process
by Sally Colby
When it’s time to look for help in a labor-intensive setting like farming, California attorney Anthony Raimondo has some suggestions for employers.
After creating a clear and concise job description, establish a set of performance expectations. “The more measurables you have, the easier it is to evaluate that person’s performance,” said Raimondo. “Measurables should be created up front during the planning phase when you’re hiring.”
Potential candidates can be from internal or external sources. Some jobs can be filled from within, but others will require outside applicants. “Make sure you create opportunity for advancement internally,” said Raimondo. “That can help you retain employees and create internal harmony. But, bringing in people from outside can bring in new ideas and different ways of doing things. You have to look at the position and determine what the priorities are. Seek from both inside and outside and choose the best.”
When advertising job availability, it’s important to be careful with language. Raimondo says that terms such as “permanent” or “secure” employment can undermine the actual status of the employee. “In most parts of the country, employees are considered to be ‘at will’ employees unless there’s a reason for them to have some other status,” he said. “‘At will’ employees can be terminated from employment for any reason at any time other than a prohibitive reason like some form of prohibited discrimination. Be sure to include ‘at will’ statements on the application — you want to drive home the ‘at will’ nature of the employment.” Raimondo suggests that employers prohibit applicants from writing anything that isn’t asked for on the application or writing outside the lines.
If an employee is not “at will,” that means you (as the employer) have a contractual relationship with the employee in which the employee would only be fired for good cause. “In order for an employee in that situation under a good cause contract to be able to seek some sort of legal remedy under wrongful termination, they don’t have to prove some kind of prohibitive discrimination,” said Raimondo. “They just have to prove there wasn’t a good enough reason to fire them. With ‘at will’ employees, the only way they can protect their job is to prove there’s a legal violation or prohibitive discrimination.”
Raimondo says it’s important to avoid certain terms and phrases in job advertisements such as “one big happy family” or “growing with the organization” because these terms promise job security that may not exist. “People’s only real job security is their performance, not any promise that the employer makes,” he said. “Avoid gender specific terms like waitress, repairman or maintenance man. Avoid impermissible inferences like ‘single person willing to travel’ and avoid age discrimination like ‘young’ or ‘energetic.’”
In most states, employers cannot charge a fee for a job application. Raimondo prefers paper applications to online applications because they provide a good way to obtain certain other information on candidates, but he suggests limiting that information to background, references and other basics.
The job application should include a section that clearly states that providing false information is grounds for termination. “Be careful how you handle that policy,” said Raimondo. “Sometimes that can force you to fire someone who provides you with false information because they have immigration issues. You have to balance those two things against each other.”
Once there are applicants for the open position, the interview process begins. The employer’s role during the interview is to initiate the conversation, then allows the applicant to provide information. “If you’re doing most of the talking, something is wrong with the process,” said Raimondo. “Your participation is designed to get them to talk and tell you about who they are.”
Raimondo suggests that employers prepare a list of interview questions on paper ahead of time and cautions employers to be mindful of questions they ask during the interview.
“Do not ask for the applicant’s social security number on an application or during the interview — that’s considered unlawful discrimination,” he said. “Only ask about age if it’s a bonafide occupational qualification (BFOQ) and don’t ask their date of graduation. Only ask about what languages they speak if it’s truly a bonafide occupational qualification. If English language proficiency is actually needed for the job, you can ask about it; if not, don’t ask.”
Avoid discriminatory questions such as “do you have a health condition that may prevent you from performing the job?” “Instead, make a statement that you are an equal opportunity employer, and that you will provide reasonable accommodations for employee disabilities,” said Raimondo. “That gives the candidate the opportunity to tell you if they have any restrictions that need to be accommodated.”
Other questions that should not be asked include “Are you a U.S. citizen? Is that a (choose an ethnicity) name? Do you have your own car? Do you plan to have children? What does your spouse do for work? Are you married or single? Do you attend church? Do you have a disability? When did you graduate from high school? How many days were you sick last year? Have you ever been hurt at work?”
“These are all banned questions,” said Raimondo. “There are different ways to get the information. You can have people list the school they went to on the application, and that’s considered a neutral inquiry. They will typically write down their year of graduation.”
Employers should be cautious when it comes to asking about activities outside of work. However, Raimondo says that it’s a good practice to go online and search for information about the applicant, and that employers can potentially uncover information that they might not discover with a background check or information that they wouldn’t ask about directly.
Be realistic when explaining the job to the applicant, and don’t overpromise; especially if someone might be relocating for the job. Maintain consistency among applicants, which Raimondo says will help protect you from allegations of discrimination.
Interview questions should be job-related and non-discriminatory. “Don’t ask if they’re married, if they have kids, or about childcare arrangements,” he said. “Those things can become landmines. Don’t ask women about what they might do if they become pregnant. It’s considered gender discrimination to consider the potential of someone becoming pregnant as a negative in the application process.”
Raimondo says that the employer should have authorization from the applicant to check the references they’ve provided, then follow up and check those references. In jobs that will require the applicant to be driving, it’s important to learn about that person’s driving record. “If you hire someone who has seven DUIs and you put them in a truck and they drive down the road and drink and hit someone, a third party can sue you for negligent hiring if you didn’t check that person’s driving record before putting them behind the wheel,” he said.
Missed Part 1? Read about it here.

2017-02-03T10:25:18+00:00February 3, 2017|Grower Midwest|0 Comments

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