3 Legal Mistakes Hiring Managers Make In the Employment Process

by JD Supra Perspectives

"Don’t just ask questions on the fly. Instead, prepare a list of interview questions that touch on aspects of the applicant’s attitude, interests, experience and skills that you want to evaluate – and stick to it. The questions should be based on an updated job description and your assessment of characteristics that your most successful current employees share..." - Nancy Holt, FordHarrison

In your experience, what's the one legal mistake managers always (inadvertently) make during the hiring process? For a legal perspective, that's the question we put to labor and employment attorneys writing on JD Supra - and here is what we heard back. [Spoiler - we actually offer more than three, with additional added as they come in]:

1. They conduct improper background checks (if at all):

From Kelly O. Scott, partner in and head of Ervin Cohen & Jessup’s Employment Law Department: "The one mistake in the hiring process most frequently made by hiring managers is the background check. Either it wasn’t done properly or it wasn’t done at all. In an age where accessing information is easier than it ever has been before, it is foolhardy to not consider researching the background of potential employees prior to commencing employment, particularly where the employee will be in a position of authority or otherwise have access to important information or company resources. However, there are specific rules that apply to certain types of background checks under the federal Fair Credit and Reporting Act (FCRA). In addition, a number of states have laws based on the FCRA. Some states, such as New York and California, take the FCRA a step further and add restrictions on the types of information than can be considered and expand written consent requirements. The failure to follow these rules can have disastrous consequences for the employer, consequences which are almost as bad a blindly hiring a key employee."

2. They use the wrong forms:

From David Dubberly, chair of Nexsen Pruet's Employment and Labor Law Group: "A very common mistake is using old forms that the manager doesn’t realize are out of date, like the old version of the I-9 form that has been replaced, or application forms that ask questions that are no longer a good idea to ask, or background check consent forms that do not take into account recent developments regarding background checks. Closely related to this is using forms found on the internet that don’t really fit the situation at hand or don’t comply with local law, like using a template termination letter or an NDA that was written with one state’s laws in mind for an employee in a different state.  Using outdated or inadequate forms can lead to fines and lawsuits."

3. They don't prepare well enough for (appropriate) interviews:

From Nancy Holt, counsel at FordHarrison: "In recent experience, I have found that hiring managers’ interview goals often involve assessing a candidate’s attitude, personality and 'likability' just as much as his or her relevant skills and experience. This frequently leads to less formal, more conversational interviews, which can, in a matter of seconds, go from an appropriate conversation about legally permissible topics to a red-flag conversation about age, disability, pregnancy or a host of other impermissible or inappropriate topics. Hiring managers can avoid these issues by formalizing their interview preparation, even if the interview itself is less formal. Don’t just ask questions on the fly. Instead, prepare a list of interview questions that touch on aspects of the applicant’s attitude, interests, experience and skills that you want to evaluate – and stick to it. The questions should be based on an updated job description and your assessment of characteristics that your most successful current employees share. Even though there is always the possibility that an applicant will bring up an impermissible topic on his or her own, having a script to guide you will help you bring the conversation back to more appropriate, legal subjects.

"...candidate interviews are like tires. There’s a big wheel, but only a fraction of it meets the road at any given point." - Keith Watts, Ogletree Deakins

*Bonus perspectives:

4. They hire at “light speed” (or just too fast): 

From Keith Watts, managing shareholder of the Orange County office of Ogletree Deakins: "While not illegal in and of itself standing alone, failing to take time to assess both your needs and the candidate’s skills and qualifications – and how those mesh – can eventually lead to lawsuit heaven for the employee later on. While there may be pressure from the business side of the operation to 'fill the spot,' the failure to do your due diligence on any candidate will almost always come back to haunt the employer. And the potential distraction, drain – not to mention astonishing cost – of litigation will far outweigh any savings the employer thought they might realize by placing someone into the position quickly – without going through an appropriate vetting process.

Although it may sound too 'common-sensical,' no matter how busy or strapped you are for time – take the time to really think about the candidate. In one sense, candidate interviews are like tires. There’s a big wheel, but only a fraction of it meets the road at any given point. During the interview, you only have a short time to assess the candidate – and only see that small part of the wheel where 'the rubber meets the road.'  Most of the time, however, it’s just not enough."

5. They don't keep appropriate notes:

Again, Ms. Holt at FordHarrison: "Another common inadvertent mistake is failing to keep appropriate notes (or any notes at all!) on interviews.  Don’t include things that will embarrass you in the future, could be interpreted as discriminatory, or have no bearing on your decision-making process. For example, if an applicant arrives at an interview wearing sneakers and a sweatshirt when a suit would have been appropriate, don’t simply write that the applicant 'did not have the appropriate appearance' or 'did not fit the company image,' as these comments could be interpreted as discriminatory.  Instead, be specific – take note of precisely what the applicant was wearing. These types of accurate, specific notes will help you if you ever have to defend your hiring decision in court or before a state agency."


We'll add additional perspectives as they come in. A parting thought from Keith Watts again at Ogletree Deakins: "Many employers are still asking for social security numbers on their employment applications – not a good idea. Scour your applications to make sure you are not asking for social security numbers."


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