The hiring process involves legal requirements from the moment you post a job through the new employee's first day. Mistakes during hiring can result in discrimination claims, wage and hour violations, and negligent hiring liability. Understanding legal requirements helps organizations recruit effectively while minimizing exposure.
Employment law affects job postings, applications, interviews, background checks, offers, and onboarding. Each stage has compliance considerations that HR must navigate carefully.
Job Postings and Recruitment
Job advertisements must avoid language that suggests discrimination based on protected characteristics. Phrases like "young and energetic" or "recent graduate" can imply age discrimination. Focus job requirements on objective qualifications needed to perform essential functions.
Be cautious about qualifications that might disproportionately exclude protected groups. Requiring a degree for a job that doesn't truly need one may create adverse impact. Physical requirements must be genuinely necessary and not pretextual barriers.
Some jurisdictions require salary transparency—posting pay ranges in job ads. Even where not required, salary transparency is becoming standard practice and expected by candidates.
Application and Interview Compliance
Ban-the-box laws in many jurisdictions restrict when employers can ask about criminal history. Typically, you cannot ask on applications; you must wait until later in the process or after conditional offer. Check local ban-the-box requirements—they vary significantly by jurisdiction.
Interview questions must relate to job qualifications. Avoid questions about marital status, children, age, disability, religion, national origin, or pregnancy. Even casual conversation can create problems—asking "That's an interesting accent, where are you from?" touches on national origin.
Interviewers should be trained on lawful questioning. A single inappropriate question by an untrained manager can become evidence of discrimination if the candidate isn't hired.
Background Checks
Background checks are regulated by the Fair Credit Reporting Act (FCRA) when conducted by third parties. FCRA requires written disclosure to candidates before obtaining reports, separate from application materials, and specific consent.
If you take adverse action based on background check information, you must follow FCRA procedures: provide a pre-adverse action notice with copy of the report and summary of rights, give the candidate time to respond, then provide final adverse action notice if you proceed.
Using criminal history must be job-related and consistent with business necessity. Blanket exclusions of people with any criminal record likely violate EEOC guidance. Consider the nature of the offense, time elapsed, and relevance to the position.
Offer Letters and Employment Agreements
Offer letters should clearly state compensation, benefits, start date, position, and reporting structure. Include at-will employment language to avoid creating contract claims for job security.
Be careful about promises. Statements like "you'll have this job as long as you perform well" can be interpreted as employment contracts, limiting your ability to terminate at will later.
For positions involving confidential information or competitive concerns, consider whether non-disclosure, non-solicitation, or non-compete agreements are appropriate. These have varying enforceability by state—some states ban non-competes entirely.
Onboarding Documentation
Form I-9 verifying work authorization must be completed within three business days of the employee's start date. I-9 compliance is strictly enforced—completing forms early or late creates liability.
Collect W-4 tax withholding forms and set up payroll correctly from day one. State tax forms may also be required. Benefits enrollment must occur within specified windows.
Have new hires acknowledge receipt of employee handbook and key policies. This acknowledgment helps establish that employees knew the rules they're later alleged to have violated.
Drug Testing
Pre-employment drug testing is generally permitted but regulated. Some states limit testing, restrict testing for marijuana, or require specific procedures. Medical marijuana laws create complications—even where recreational use is illegal, some states protect medical users.
Test all candidates for a position consistently to avoid discrimination claims. Maintain confidentiality of results. Have clear policies about what substances are tested and consequences of positive results.
Avoiding Negligent Hiring Claims
Negligent hiring occurs when an employer hires someone who harms others, and the employer should have known the person posed a risk. Background checks appropriate to the position help defend against these claims.
Higher risk positions—those involving vulnerable populations, access to homes, handling money—warrant more thorough screening. The standard is what a reasonable employer would do given the position's risks.
Getting Legal Help
Hiring involves numerous legal landmines. Employment attorneys can review your hiring processes, applications, interview protocols, and background check procedures to ensure compliance. When making complex hiring decisions—especially those involving background check issues or accommodation requests—legal guidance helps you make defensible decisions that treat candidates fairly while protecting the organization.