Challenge of Hiring the Right Employees

Instant Attorney Drafted
Employee Handbooks

Multi-State
Business-employment attorney Jay Eckhaus 

Member of SHRM,
Society for Human Resource Management

1. Use non-discrimination statements in all employment applications and advertisements for hiring.


2. Avoid asking the questions or making statements that are inappropriate as they can be misconstrued as discriminatory. Questions asked or written on employment applications involving race, religion, age, national origin, immigration status, sexual preference, family status and health should be avoided.


3. The Employment application and Employee Handbook should have an appropriate statement that employment is “at will,” and that employees may be discharged with or without cause.


4. The employment application process should have authorizations to contact references as well as to conduct drug testing from time to time. If you have a substance abuse employee policy that has a drug testing element, make certain that the policy complies with your state's  laws.
   
   Most of the restrictions on drug testing and substance abuse policies are found in state law.  For example, the type of notice that an employer is required to give employees before implementing drug testing.  If the test is positive for controlled substances, are you required to have a confirming test?  How is the Confirming test performed? Can the applicant for employment or the employee testing positive challenge the test results? These questions are answered under state law.
   
   Many states have specific laws concerning the confidentiality aspects of employer required drug screening; both with respect to the actual drug screening procedures and as employee medical records.
   
   Inquiries concerning current illegal drug use may be made at the pre-offer stage unless prohibited by State or Federal law.  Inquiries into lawful medications currently being taken should be avoided except where appropriate on the consent form used as part of a test for substance abuse.


5. Avoid asking applicants about their medical history as this may be misconstrued by applicants.  Job offers may be made subject to passing a medical examination. Remember, for those applicants who may be disabled, you may need to make reasonable accommodations for the disability.


6. Use Consumer credit Reports With Caution. If you have a policy on using consumer credit reports in evaluating candidates for employment or advancement, the application for employment should have an authorization signed by the candidate allowing you to obtain the report.  Appropriate disclosure under the Fair Credit Reporting Act must be made to the applicant.
   
   The Federal Trade Commission has important rules on using consumer credit reports for job hiring and the use of such reports with employees. This includes disclosures prior to receiving an applicant’s or employee’s consent to obtain a consumer credit report, pre-adverse action and adverse action notices.

To get copies of the FTC's information, click these links:


Notice to Users of Credit Reports  |  FTC Facts For Businesses Using Credit Reports


No discussion on employment practices would be complete without guidance on “immigration status.”

While it is advisable not to ask a potential employee his or her immigration status, Federal law requires employers to comply with the I-9 requirements in order to identify those employees who are authorized or not authorized to work in the United States.

The I-9 forms should not to be completed until after the applicant is offered the job and the job is accepted.

On applications for employment and pre-offer screening, do not ask to see the drivers licenses or passports of applicants for employment or any other document having a photo or birth date.  Once a candidate accepts the job offer, you may request such documents.

The I-9 Forms with instructions are available to you (click here).

FingerTip Manual offers Legal Forms and HR Forms to help you with pre-employment, employment and employee termination.