Business Law 101 / Hiring

By Albert L. Kelley, Esq.

There are numerous ways for a business to find employees. They can put ads in newspapers or online, post job notices, use word of mouth or hire an employment agency. However, this must be done in a fair method that does not discriminate against a certain group. Job postings must be neutral and not discourage certain groups from applying. For example, if the posting looks for “recent college graduates”, it may discriminate against the elderly. If word-of-mouth is primarily among white workers, it may discriminate against minorities.

If you want to avoid all the hiring requirements, you can find workers through an employee leasing company. These are businesses that do the hiring and then lease their employees to other businesses. The leasing companies charge the business and then pay their employees, handling all tax filings and paperwork.

If you hire employees on your own, you will need to interview them to make sure they are a good fit for your business. There are several different interview styles employers use. Some prefer a one-on-one interview, some have a panel interviewing the applicants. Interviews can be in person, by phone or even skype. Some even do a written interview, however, this is usually not recommended as you do not get to see the applicant while they are responding and don’t know what resources they are using while responding. Some interviewers like to hold the interview over lunch or dinner so they can watch the applicant’s behavior in an informal setting (I read of one interviewer who always held the interview over lunch to see if the applicant reached for salt before tasting the food. That was a sign that the applicant acted without researching.

Regardless of the interview style, the interview process is fraught with risks, so you will need to know what you can ask and what you cannot. There are laws that restrict what you can ask. Violating these rules can subject the employer to charges of discrimination. The interview should be based on determining the applicant’s ability to do the job. Do they have the proper qualifications? Do they have the ability to do the job? Make sure all questions are job-relevant.

Some questions are clearly off limits. You cannot ask any questions regarding race. It is improper to ask an applicant about disabilities, other than to ask if they can perform the essential job functions, either with or without reasonable accommodations. You may ask them to demonstrate their ability to perform the job function. An employer cannot ask an applicant their age, except to provide proof they are over 18 years old. You may not ask an applicant about their religious beliefs, but you can ask if they can work on Saturday or Sunday if the job requires it. Questions that seem innocuous or irrelevant can be illegal. Seemingly neutral questions can illicit improper information. It is improper to ask an applicant about their membership in any club, social organization, or union membership. You can, however, ask about membership in a relevant professional association. Employers cannot ask if the applicant if they are married or have children. The employer may not ask if an applicant has been arrested, but they can ask if the applicant has ever been convicted of a crime. It is improper to ask about alcohol use, although it is permissible to ask if the applicant is currently using illegal drugs.

If the applicant volunteers information that the employer is not allowed to ask about, the best practice is to not follow up on that information and not to write anything down regarding that information. These rules are in place to protect the employee from discrimination, and the employer from claims of discrimination. Employment decisions cannot be based upon improper information.

To better protect themselves, employers should put together a structured interview so that every applicant is asked the same set of questions.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” “Basics of Florida’s Small Claims Court” and “Basics of Florida’s Landlord-Tenant Law” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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