Personnel Practices: Hiring Basics

by C. Alexander Chiulli, Esq. and Kristen M. Whittle, Esq.

Personnel PracticesAs the first step in the employment relationship, the hiring process is also one of the most important. It is an opportunity for both parties to lay the groundwork for a successful relationship, but employers should take certain steps to ensure that the process is completed properly. In addition, employers should be aware of pitfalls for liability, such as claims of discrimination, breaches of privacy, and violation of laws and regulations governing, for example, drug testing and social media. Even prospective employees, who are not ultimately hired, may present claims in this regard. The following do’s and don’ts are intended as best practice tips to guide employers through the hiring process.

DO avoid questions related to a candidate’s membership in protected classes (e.g., race, gender, age, religion, sexual orientation, or disability). Employers should also generally refrain from including this information, such as an applicant’s gender or date of birth, on an employment application. Unless an employer is subject to affirmative action requirements (and most employers are not), hiring decisions should be made based on a candidate’s merit, and not on his or her membership in a protected class. Instead, employers should focus on determining whether applicants are qualified for a position by probing their education, experience, and skill-level. Through fashioning qualification-based questions, employers will not only obtain more useful information for making hiring decisions, but may avoid potential discrimination claims.

DON’T overlook compliance with industry-specific screening procedures. In areas such as healthcare, child care, aviation, and education, among others, certain screening procedures are mandated by law and essential to protecting the public interest. Failure to complete the required screening procedures can potentially give rise to liability on the part of an employer.

“Through fashioning qualification-based questions, employers will not only obtain more useful information for making hiring decisions, but may avoid potential discrimination claims.”

DO, however, proceed with caution when conducting background checks. While an employer may generally inquire about applicants’ background information during the interview process, employers are not typically permitted to run background checks without applicants’ consent. In addition, a recently-enacted Rhode Island law prohibits employers from inquiring about an applicant’s criminal convictions prior to the first interview. This law, known as “ban the box” because of the prohibition on a check-box on job applications concerning an applicant’s criminal history, provides that it is unlawful for most employers to ask job applicants about arrests, charges, or criminal convictions (including any verdicts or findings of guilt, guilty pleas, or pleas of nolo contendre) on any employment application. Employers who do not use formal job applications are similarly prohibited from asking about these topics until at least the first interview.

DON’T forget to comply with Rhode Island’s drug testing statute, if drug testing is part of the application process. Rhode Island has enacted one of the strictest laws in the nation concerning employee drug testing, and violations can lead to criminal liability. If pre-employment drug testing is not required by an industry-specific law or regulation, employers should consider whether to engage in this practice at all.

DO use only publicly available information about job applicants when conducting screening or due diligence research on social media. The Rhode Island General Assembly recently enacted legislation prohibiting employers from requiring applicants to provide access to their social media accounts or to add the employer as a contact on their social media accounts. In other words, an employer may not require an applicant to connect with the employer on a social media site as a consideration in the hiring process.

By creating a culture of compliance in the hiring process, employers may avoid liability down the road. When in doubt, however, employers should always contact a seasoned professional to help navigate this process.

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Avatar About the Author: The Rhode Island Small Business Journal is a printed monthly magazine and an online resource for the aspiring and start-up entrepreneur and small business owner.

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