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The hiring process can be one of the most stressful steps of any employment relationship. As the employer, you are opening your doors to somebody who is hopefully going to contribute to your company’s success. Moreover, hiring is a process that requires both time and money. Thus, employers often want to expedite the hiring process.

Beyond the immediate goal of hiring the best candidate, employers may also want to regularly monitor and critique their hiring practices to ensure they are lawful and do not invite litigation. Federal, state, and local laws often establish boundaries on the information that employers may lawfully request from potential employees, but there are other, less obvious issues that can arise. Below are four areas where potential exists for employment law claims.

1. Diversify your job posting sources. In recent years, plaintiffs’ attorneys have focused on how and where companies advertise their available positions. Any job posting that targets certain demographics can be used as the basis of a discrimination claim alleging that a company is excluding a particular category of applicants. For example, an employer that uses social media to advertise a position and targets a post to appear in the newsfeed of individuals ages 25 to 35 only may face a claim that it is favoring younger workers, in violation of the Age Discrimination in Employment Act of 1967. An employer may be able to avoid or defend any such a lawsuit by using multiple means to publicize job openings so that they are accessible to a wide range of candidates.

2. Avoid application and interview questions that are likely to elicit information about an applicant’s health before making an offer of employment. Employers may be familiar with the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of a qualified individual’s disability. This law also limits the information that employers may lawfully ask about any health condition that may potentially be a disability. Before an employer makes an offer of employment, or in the pre-offer stage, the ADA severely restricts companies from making disability-related inquiries or even asking questions that are likely to uncover information about a disability. During the post-offer, pre-employment stage, employers have more flexibility to ask questions about an applicant’s health and how it might affect his or her ability to do the job.

3. Carefully consider if and when to conduct criminal background checks. Employers may want to limit criminal background checks to positions in which there is a justifiable need for one based on the duties and responsibilities. This basis for requiring a background check, which the U.S. Equal Employment Opportunity Commission refers to as “job-related and consistent with business necessity” in its enforcement guidance, can be an important defense to any claim that a business used background checks to screen out candidates based on race, national origin, or another protected category under federal or state law. Wisconsin employers may want to take special care with the information they receive from a background check. The Wisconsin Fair Employment Act prohibits employers from denying a candidate an employment opportunity because of his or her arrest or conviction record unless a conviction is substantially related to the position. To avoid unlawful discrimination claims, employers may want to reconsider blanket policies that exclude applicants from consideration for any conviction.

4. Be cautious when hiring a competitor’s former employee. Employees who have access to internal confidential information or are in customer-facing roles often are subject to restrictive covenants. A restrictive covenant is an agreement that an employee will not compete with his or her former employer or solicit customers for business after the employment relationship ends. Someone who may seem like a strategic hire may be bound by a restrictive covenant. The former employer may not only sue its former employee to enforce their agreement, but it may also name the new employer as a defendant. In light of this, employers may want to ask whether an applicant is subject to any type of noncompete agreement before making an offer of employment. If an applicant denies having signed any such agreement, the hiring employer may want to ask him or her to confirm in writing that he or she is not subject to any agreements and is not in possession of or planning to use any competitive information. The hiring employer can use that document to avoid or defend against any claims that it acted improperly.

A version of this article was previously published in the February 2019 issue of IBAW Magazine


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