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The Hiring Process

Small business owners depend on unified team members. Without good workers, a small business can fail. A small employer does not have time to screen candidates from an endless pool of job seekers. They need a way to spot the right person, fill open positions, and get people to work right away.

At the same time, top talent has its pick of the best employers. Business owners need a good recruitment strategy so their job postings attract the candidates they want. If your business has a human resources department, your hiring manager has the task of finding qualified candidates. Otherwise, that job is yours.

Hiring employees isn't as simple as running an ad and talking to a few applicants. State and federal laws limit what an interviewer can ask during the hiring process. There are also restrictions on the types of tests you can administer before a conditional job offer.

FindLaw's Hiring Process section provides information about:

Job Descriptions

Job boards like LinkedIn make your hunt for the best candidates easier if you know what you're looking for. Everyone is hunting for the best employees they can find, so how you write your job description matters.

It may surprise you to learn that there are some legal requirements for a job listing. Employers do not have to have any job description at all. If they do have one, some things must be included:

  • The Americans with Disabilities Act (ADA) requires all job descriptions to include the "essential job functions." These are the duties that a worker must perform with or without accommodations. An essential function is not what an employer might prefer workers be able to do. For instance, a warehouse worker needs to be able to lift at least 50 pounds, but a secretary does not.
  • Title VII of the Civil Rights Act prohibits job ads that discriminate against protected classes. Employers must beware of subtle discriminatory language such as "we check all applicants for citizenship," which is illegal and also biased against minorities.
  • The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against applicants over 40. Discriminatory language such as "We're a young and tech-savvy company," may discourage older workers from applying. and can be a violation.

Writing good job descriptions is more complex than posting on social media. You should consult an employment attorney and an HR professional if you have questions about listing a job opening.

Interviewing and Job Offers

Like writing the job description, some things are not legal to say during a job interview. Both federal and state laws limit the questions you may ask job candidates. Some questions to avoid include:

  • Asking about a candidate's religion, race, gender, sexual orientation, or age
  • Asking if a prospective employee will need a reasonable accommodation for a disability
  • Asking if a candidate has a criminal history beyond what your state's employment guidelines allow
  • Asking if your candidate has a drug or alcohol problem

Employers shouldn't make promises about future employment, perks, benefits, or other things that can get them in trouble later.

Pre-Employment Testing

Pre-employment testing is part of the recruitment process. It can help you find the right candidate but also open you to liability and lawsuits if done incorrectly. In general, pre-employment tests fall into two categories:

  • Tests you can give before a job offer: In most states, you may give skills-based tests, personality tests, and integrity tests prior to a job offer.
  • Tests you may only give after a conditional job offerDrug testing and other medical exams must wait until after an offer of employment. The ADA considers drug and alcohol addiction to be disabilities, so don't make hiring decisions based on their existence.

Other types of pre-employment testing are often done after a job offer because of related costs and time. Background and credit checks may take several days or weeks, so there is no point running them until you choose a candidate.

In some cases, a new hire may need to permit a credit history or criminal background check. Employers should confirm what they need with their human resources or employment law attorney before beginning the onboarding process.

Independent Contractors vs. Employees

Small business hiring practices today often involve independent contractors. Having someone come in for a few days or weeks may be more cost-effective than hiring a new employee. Independent contractors pay their employment taxes and do not receive employee benefits. They may receive higher payment for the job, but leave when finished.

Employers must classify contractors correctly. The IRS has an extensive list of factors it uses to determine if a worker is an employee or an independent contractor. The job title of an independent contractor is not sufficient. Other factors include:

  • The degree of autonomy the worker has: If the worker must wear a company uniform, follow a restrictive schedule, and clock in and out at a specific location, the IRS will consider them an employee, not a contractor.
  • The purpose for which the employer hired the contractor: If the purpose is outside general business needs and the contractor was hired for a particular skill set, they are not usually employees.
  • The duration of the employment: A fixed term of employment is more likely indicative of contractor status.

Employers must use caution when hiring independent contractors. Penalties and fines for misclassifying employees are severe and expensive. Get legal assistance if you're unsure about your job classification system.

Federal Hiring Laws

There are various hiring laws that employers must follow, both on a federal and state level. These laws help prevent discriminatory practices in hiring and employment. Federal laws exist that prevent:

  • Discrimination based on race, color, national origin, sex, religion, and genetic information (Title VII and GINA)
  • Unequal payment based on gender (Equal Pay Act)
  • Discrimination based on age (ADEA)
  • Discrimination against disabled workers (ADA)
  • Hiring minors in hazardous occupations

Employers must verify that a person is legally eligible to work in the United States within three days of an employee's start date. Interview questions must follow federal laws and cannot discriminate against any group.

Contracts and Employment Agreements

Whether this is your first employee or the most recent of a hundred, you should have a written employment agreement and an employee handbook. A written contract is better than none, even in at-will states. Contracts contain essential clauses that establish the relationship between employee and employer.

Your contract should include:

  • The terms of employment, wages, hours, and job title
  • Benefits, such as health insurance, retirement, and vacation or paid time off
  • Disciplinary policies and termination
  • Nondisclosure clause
  • Dispute resolution or arbitration

Online templates and HR software can write a standard employment agreement for almost every business. You should consult an employment law attorney for a custom contract or if you must deal with a collective bargaining organization.

Hiring an Attorney

Your business hiring policies and practices must comply with all federal and state laws. Your policies and practices should have a professional review. Consult a local employment law attorney to ensure your compliance with applicable laws.

Learn About The Hiring Process

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