In recent years, the industry has seen its share of ebbs and flows when it comes to employment, with the main contributor to its fluidity being the COVID-19 pandemic. As organizations continue to grow and hunt for stronger and skilled talent, it is becoming more apparent that the process of assessing prospective candidates is essential to establish a unified and cohesive corporate culture and team.
However, prior to posting a new job opportunity or scheduling an interview, there are requirements and considerations that firms should be aware of when making the necessary talent additions at their firms.
This month’s legal tip will focus on preparing Firms and Companies for the legalities of recruiting and interviewing prospective employees. There are federal, state, and local employment and labor laws that apply to job postings, interview questions and employment contracts that must be considered during the entire hiring process.
Drafting Your Job Opportunity
Once your company has decided to recruit and hire new staff, the first step is to draft and post the job opportunity. However, in doing so, be sure to consider your state’s requirements for information to include or exclude from your postings. For example, in California, employers with 15 or more employees are required to include the salary (or hourly wage) range in all internal and external job postings. In Florida, employment and recruiting services are prohibited from guaranteeing a job in their postings. Other common requirements include posting the job opportunity internally and externally, providing job postings in multiple languages, and taking steps to ensure that job postings do not discriminate against job applicants in U.S. Equal Employment Opportunity Commission protected categories.
The Wave of Pay Transparency
Pay Transparency laws are trending around the country, with New York being the most recent addition. These laws are designed to require employers with a certain number of employees to list salary and wage ranges for all job opportunities and make salary and wage information available to existing employees. Furthermore, an employer must divulge salary and wage range information to current employees and external applicants upon their request. It should be noted that many of these laws, also include document retention obligations, pay equity reporting to their state, and requirements related to compensating employees equitably irrespective of a protected class, such as gender.
It’s critical for employers to meet these state requirements because violations will result in penalties and fines, ranging from $500 – $1,000 per penalty. Thus, organizations should also include verbiage reflecting these requirements within their company Human Resources’ policies and procedures, as well as the Employee manual. For example, job postings by Washington-based companies are required to disclose a salary range, a description of the discretionary and nondiscretionary wages and benefits.
International Career Opportunities
As the remote work world continues to expand more organizations are onboarding the right talent – regardless of their location. Many companies are open to recruiting international talent, but before doing so, it is important to become familiar with the laws of foreign countries where you will be recruiting.
Below are a few key areas to consider during the recruiting process of international candidates so that your firm or company does not draw attention from a foreign country employment commission for violations of local laws. There may be:
- Legal limits on an employer’s ability to conduct background checks. Depending on the employee’s location, certain regulations may prohibit the utilization of a third-party service provider to perform the background check. In some instances, employers may request the candidate to obtain the records and review.
- Requirements for certain pre-employment screening procedures. In some countries, employers are prohibited from making conditional job offers, thus all screening and assessments will need to be completed early in any hiring process.
- Anti-discrimination laws which, in some countries, include different protected classes. Not all countries define “protected classes” the same and require more of a critical eye when reviewing. South Africa, Brazil, and the United States have some of the more critical considerations for these protections.
- Recognition and legal limits on “at-will” employment
- Differences in work-day hours, holidays and work-week days
- Taxation of Foreign employee earnings
Best Practices for Interviewing Candidates
Once candidates have been selected for interview, crafting specific interview questions is an integral step to candidate selection. Well thought-out questions can help assess whether the candidate is qualified and a good cultural fit for the organization. Questions should be carefully crafted and designed to address the roles and responsibilities of the position and explore that individual’s career objectives and expectations of the employer. It is also important to explore the candidate’s communication style and work experience. When considering interview questions, it is prudent to become familiar with any local and/or state employment laws requirements on questions that you cannot pose to prospective candidates. For example, in some states, the employer is not permitted to ask questions related to current salary and wage earnings, length of time at current of previous residence, credit worthiness, family or parental status.
Generally, many states and the federal laws protect categories of people from discrimination including, gender, race, age, national origin, citizenship, marital status, disabilities, arrest and conviction record, military discharge status and pregnancy status. Thus, unless the question directly relates to a function of the job position, it is illegal to inquire about these matters with interviewees. Keep in mind, as the hiring process moves forward, you may be allowed to conduct a background check that will reveal information that you could not cover in the interview.
The recruiting process can be complex given the various employment laws that apply. If you or your firm need job postings reviewed for legal sufficiency, our counsel at Jacko Law Group, PC (“JLG”) can assist as you prepare for local, national, and international publication. We assist clients with reviewing interview questions and assisting with recruitment and on-boarding processes which comply with local and state employment law regulations. For more information, please contact JLG at email@example.com or 619.298.2880 for assistance.
Author: R. Shea Lee, Esq., Senior Attorney; Editor: Michelle L. Jacko, Managing Partner of Jacko Law Group, PC (“JLG”). JLG works extensively with investment advisers, broker-dealers, investment companies, private equity and hedge funds, banks and corporate clients on securities and corporate counsel matters. For more information, please visit https://www.jackolg.com/.
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