As we previously discussed, employment litigation is one of the fastest growing areas of litigation colleges, universities, and other employers face. Employers can be confronted with legal liability from applicants, stemming just from the hiring process, even if an employer ultimately does not hire the potential employee. Missteps in the recruiting and hiring process are even more likely to occur when an employer is under a short timeframe to hire a new employee.
During the hiring process and leading up to an offer of employment, make sure to follow some basic guidelines:
- Update the job description for the position you are hiring (be sure that it accurately reflects the essential job functions of the position);
- Follow your internal hiring processes and procedures (do not make exceptions for friends, family, etc.);
- Adhere to equal opportunity policies during the hiring and interview process (avoid discrimination claims by not asking for information that tends to reveal protected classifications, such as age, disability, ethnic origin, pregnancy, etc.);
- Be mindful of Fair Credit Reporting Act (“FCRA”) obligations if you conduct background checks of potential employees (employers have specific responsibilities under FCRA);
- Base hiring decisions on legitimate nondiscriminatory reasons and document the same (if there is more than one qualified candidate, document the basis for your decision and why other qualified candidates were not selected).
While there is no crystal ball for how to avoid all legal risk in the hiring process, taking these basic steps can greatly reduce the likelihood of litigation and facilitate a consistent, fair, and defendable hiring process.