The 9 Key Pitfalls of Hiring

Hispanic small businesses must be aware of laws relating to the hiring of employees.

As any Hispanic small business owner knows, there are dozens, if not hundreds, of federal, state and local laws that must be followed in the course of a day. What the small Hispanic business owner might not know is that all businesses also must comply with the dozens of employment laws relating to the hiring of employees.

Here are some of the pitfalls, which all small business owners should be aware of when hiring:

1. Make sure the hiring decision is not based on an applicant’s protected status, such as the his or her race, color, gender, religion, disability status, sexual orientation, etc. Just ask yourself whether the applicant was hired or rejected because of his or her protected status. If so, you may be subjecting your business to litigation. 2. Make sure you receive an authorization from the applicant to conduct reference and background checks. Some states, for example, allow criminal background and credit checks but require that the applicant receive a copy of the results, especially if the checks are the reason the applicant is not hired. Because the law in this area is very complicated and varies from state to state, you should seek assistance from legal counsel to develop the necessary notice and disclosure forms for proper background and credit checks. 3. Make sure your employment application does not seek private or protected information such as the applicant’s age (by seeking, for example, the applicant’s birth date or dates of high school and college graduation), marital status, religion, place of birth or disabilities. In addition, some states prohibit employers from asking about arrest histories. Even the most innocent of questions can be used by overzealous applicants to support a discrimination claim. 4. Any person conducting applicant interviews should not ask about private or protected information during the interview. All persons who interview applicants should be trained to conduct appropriate and objective interviews. 5. Do not require applicants to take pre-offer personality or skills tests without first ensuring that you are not unwittingly conducting a medical exam or assessing whether the person has a disability (both of which generally are prohibited under federal and state laws). 6. Do not make any promises about how long the applicant would work for you if hired, and do not promise any benefits which you do not intend to provide. By the same token, any job offer letters should not promise that the employee will work for a specific amount of time. Instead, the offer letter (and your employment handbooks) should indicate that the employment is “at will,” meaning that either the employee or employer can terminate the relationship at any time and for any reason. 7. Do not require applicants to take lie detector or drug tests, unless you ensure that your state allows you to conduct those tests. In particular, most states severely restrict the use of lie detector tests and limit when a drug test can be conducted. 8. Do not hire or recruit anyone who is not authorized to work in the United States. 9. Make sure you maintain all applications in your files for the specified period of time required by your state. In most states this is at least one year, and in some states it’s even longer. Failing to comply with the laws on these topics may subject your business to expensive litigation. Given all of this risk and exposure, it is important for small-business employers to review their hiring procedures, and seek legal assistance in doing so, to ensure full compliance with the law. Have there been any hiring challenges you have faced as a small business employer and would like to share?

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