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The unemployment rate hovered at a 49-year low of 3.6 percent in both April and May of 2019.  Low unemployment typically creates a jobseeker’s market in which workers find plentiful attractive job openings.  On the other side of the equation, however, employers usually have a more difficult time locating highly qualified candidates well-suited to the employer’s workplace culture.

Both smart and lawful hiring and recruiting practices have more importance when employers face fewer candidates and more competition to hire them present in a tight labor market.  In such circumstances, employers must think strategically to recruit the best candidates.  Many employers will need to pursue talented persons from sources beyond those upon which the employers have traditionally relied.  Doing so will likely produce a more diverse universe of candidates than the traditional sources yielded.  Over time, a more diverse applicant pool will cause employers to diversify the demographics of their workplace, which will make the employer a more attractive place to work for more potential workers.

A. First Things First: What Does the Employer Need from a New Employee?

To conduct a successful search to hire a new employee, an employer must identify what it needs.  To do so, it should develop a precise and functional job description.  It will communicate both the employer’s expectations for the employee that holds the job and give both the employer and the employee the means by which to judge the employee’s job performance.  Specifically, such a job description should accomplish the following objectives:

  1. State the job’s title accurately.
  2. List the job’s essential functions—those tasks and responsibilities that justify the job’s existence. For instance:  Provide detailed analysis of raw data in written and graphic reports for presentation to the management team.
  3. Describe the position’s minimum qualifications and prior related work experience objectively, such as a bachelor’s degree in business, economics, engineering, or mathematics with three to five years’ work experience in quantitative or statistical analysis.
  4. Identify the job’s necessary skills, for example: Ability to establish priorities, work independently, and to accomplish objectives without supervision, and knowledge of Oracle database running in a Sun environment.
  5. Specify the position’s physical and mental demands, such as: stand, walk, sit, and climb stairs.

B. Conduct the Search Not Only in the Shallow End, but also in the Deep End of the Candidate Pool.

When higher unemployment rates prevail, employers can easily attract large volumes of qualified candidates without any special effort.  These circumstances mean that they recruit candidates from the same sources that they have traditionally used.  On the other hand, in tight labor markets strategic employers expand their normal applicant pools by looking to sources that they typically ignore.  For instance, they broaden the range of colleges and technical schools where they recruit on campus.  They also attend job fairs sponsored by organizations that draw from minority populations and advertise in community publications distributed in economically disadvantaged neighborhoods.  Such employers also enter partnerships with organizations that serve minority populations.  These sources produce qualified candidates from parts of the labor market that many employers normally overlook.  These employers acquire a more diverse workforce as an unintended benefit of their efforts to expand their applicant pool.

C. Confirm that Employment Application Forms Meet Current Legal Standards.

If an employer uses application forms, then it must make sure that the forms make only lawful inquiries of applicants. In recent years, states and some municipalities have enacted laws that regulate whether and when an employer may ask applicants to disclose their either criminal convictions or arrests, or both, in “ban the box” laws.  For example, Illinois has enacted such a law and the City of Columbia, Missouri has one, too. Both prohibit employers from asking applicants to disclose their either arrest or conviction, or both, records before the employer has made a conditional offer of employment. Even in jurisdictions with no laws that prohibit inquiries about the criminal history of applicants, the Equal Employment Opportunity Commission (“EEOC”) has taken the position that they discriminate against African-American applicants because of the disproportionate arrest and conviction rates that African-Americans experience in comparison to Caucasians. Thus, the EEOC recognizes the lawfulness of such inquiries only where a business necessity justifies the employer’s inquiry about the applicant’s criminal history, such as state laws that require persons who work with children or the elderly to provide criminal history information to their employers. In addition, several states and municipalities have adopted laws that prohibit employers from making inquiries about the compensation history of job applicants, such as Illinois, the City of Chicago, and Kansas City, Missouri.  Finally, many application forms include text by which the employer discloses that it may conduct a background check through a third party organization, such as a credit bureau, obtains the applicant’s consent for the background check, and includes the applicant’s release of the employer from liability.  Courts, however, have found that the Fair Credit Reporting Act prohibits such a document.  <Employer Forms Disclosing & Authorizing Background Checks Must Exclude Liability Waivers>  Employment applications, furthermore, should include a reservation of the employer’s employment at will rights, disclaim that the application form involves either a job offer or an employment agreement, and identify the employer as an equal employment opportunity employer.  Finally, employers should have their labor and employment counsel review their employment application form if they last had such a review done more than one year ago.

D. Job Interviews Need a Laser Focus to Justify a Hiring Decision.

Employers must approach the hiring process and, especially, job interviews strategically.  The employment discrimination laws prohibit them from making their hiring decisions on the basis of a discriminatory motive, such as any one or more of the applicant’s age, ancestry, color, disability, gender, genetic information, military service record, national origin, race, or religion.  Obviously, employers must avoid asking interview questions specifically about any of these characteristics.  The law presumes that if an employer asks a question of an applicant, it will use the response in its decision-making process.  Similarly, when employers check an applicant’s employment references, they must avoid asking any questions likely to produce answers that identify the candidate to be a member of a protected class.

In some cases, however, an employer knows whether a particular candidate has a certain characteristic, because it is self-evident.  Specifically, if an employer interviews an applicant, it will typically know her or his gender, race, physical disability, and age range upon seeing her or him.  In addition, without the employer asking about an applicant’s protected characteristics, she or he may voluntarily disclose one or more of them in an answer to a question about an entirely different topic.  For example, a candidate may reveal her religion while describing the schools that she attended, her leadership experience, or recognition that she has received for her philanthropic or humanitarian activities.  The law prohibits discrimination, rather than knowledge.  Thus, mere knowledge of a candidate’s membership in a protected class infers nothing about an employer’s motivation for a decision.

Employers that think strategically will train interviewers to limit questions posed to applicants to those that will obtain answers relevant to their qualifications, skills, abilities, prior work experience, and work preferences.  Such training will also instruct interviewers to avoid asking questions likely to produce responses that either directly or indirectly reveal information about any one or more of the candidate’s:  absences from work because of illness or injury, age, ancestry, child rearing plans, child care arrangements, citizenship, emotional condition, ethnic background, family medical history, genetic information, health, maiden name, marital status, medical history, medications, military discharge status, national origin, pregnancy, veteran status, and voluntary associations.

Employers should also train interviewers to take notes during their interviews to enable them to recall each candidate.  Their notes, of course, must omit any references to any one or more of an applicant’s age, ancestry, color, disability, gender, genetic information, military service record, national origin, race, or religion.  Similarly, interviewers must avoid the use of any codes by which they note any particular applicant’s protected characteristics.  Their notes, rather, should reflect a given applicant’s relevant qualifications, skills, abilities, related work experience, and other strengths or weaknesses related to the job that she or he seeks.

The employer must also train interviewers to exercise care in any statements that they make to the candidates that they interview.  Interviewers should avoid giving any assurances that the employer offers employment on other than an at will basis.  In other words, they must make neither promises nor guarantees of a job or future employment. Similarly, interviewers must avoid making statements to applicants during interviews that express any opinions about the applicant’s chances for being hired, such as you are the best candidate that we have interviewed.

Finally, strategic employers plan the hiring process in advance and then execute their plans.  Their plans include the posing of substantially the same questions to each applicant.  Similarly, they typically have more than one person interview each applicant.  Finally, they base their hiring decisions on the data that they collect from the resumes, employment applications, responses to interview questions, reference checks, and background checks that they obtain during the hiring process.  In that way, if challenged to do so, they know the specific non-discriminatory reasons for their hiring of a particular job applicant and have records that support those reasons.

E. Conclusion

Tight labor markets come and go.  The practices that enable employers to conduct successful recruiting and hiring during tight labor markets will also serve them well when labor markets slacken.  A strategically planned and executed recruiting and hiring process will give employers the information that they need to make both lawful and sound hiring decisions.  If the laws governing recruiting and hiring and the practices necessary to satisfy them discussed in this post have raised any questions about the practices necessary to meet the laws’ requirements, please contact Gerry Richardson, (314) 552-4053, to discuss them.

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