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Hiring Employees and Avoiding Legal Problems – Seven Mistakes Employers Should Avoid When Hiring
ERROR NO. 1 Failing to ensure the employee knows they are employed at will.
Be careful what you say orally or in writing when making a job offer. Statements you make about the nature of the position or long-term opportunities within the company may be interpreted as a promise that employment is secure for a certain period of time or that you will not terminate the employee without cause. . To protect yourself, you can draft a letter of employment stating the job title, start date of employment, starting salary, reiterating the employee’s status at will, and explaining and limiting how the relationship at will may be changed in the future. Status should only be changed by obtaining signed consent from a key company official, such as the president. I know this is a problem. If you don’t, at least have the employee complete and sign an employment application; you can buy them at office supply stores. Make sure the application includes a clause stating that the employee is employed at will.
ERROR NO. 2 Define the job at will in your letter or your employee handbook.
Be careful. If you try to define the job at will, you can give the employee, their attorney, the labor board, a judge, or a jury the chance to guess you. Generally, at will, employees can be terminated legally without cause if the employer has no unlawful motive for the termination. Although the employee may perceive this as unfair, it is not actionable. Just use the term…
ERROR NO. 3 Engage in discriminatory hiring practices.
Do not do that. State and federal laws prohibit all but the smallest businesses from discriminating on the basis of race, color, sex, religious belief, national origin, disability, or age. Anti-discrimination laws apply to all stages of the hiring process: preparing job descriptions, writing job advertisements, settling wages, deciding who to hire, promotion, and discipline. The laws only apply to employers who have more than a certain number of employees; the number differs for each anti-discrimination law.
ERROR NO. 4 Ask illegal questions in the interview.
The US Equal Employment Opportunity Commission lists examples of questions employers cannot ask on its website. Here’s a partial list of general questions you can’t ask a candidate: birthplace, age (other than asking if the candidate is over 18), race, height, weight, gender, and are you married? The Americans with Disabilities Act prohibits pre-employment questions about a disability. You can ask questions about the candidate’s ability to perform specific duties. You cannot inquire about the nature or severity of a disability, seek medical treatment or demand an examination. After making a conditional offer and before a candidate starts working, you are free to gather more details. You can require a medical exam or ask health-related questions as long as you require it for all candidates who receive conditional offers in the job category.
ERROR NO. 5 Invasion of an individual’s right to privacy.
Some people give incomplete information when applying for a job. It’s good business to do a background investigation. If someone doesn’t have the required experience or a criminal record, you might have a problem. Only search for the information you need. Inform the applicant in writing if you are requesting information from schools, credit reporting agencies, former employers, etc.
ERROR NO. 6 Violation of the Fair Credit Reporting Act.
A federal law imposes rules regarding the obtaining and use of consumer reports, credit reports and background checks. The rules apply to any report prepared by a consumer reporting agency like TransUnion, Equifax a report prepared by a private investigator would also be covered. You must notify someone in writing before obtaining the report. You need the person’s written permission.
If you get the report and you are going to take an action adverse to the person, such as not hiring them, you must first give the person a copy of the report and a copy of the summary of your rights under the Fair Credit Reporting Act which is available on the Federal Trade Commission website, or simply obtain one from the entity that prepared the report. After taking the adverse action, you must inform the person. You must do this in writing and the notification must state the name, address and telephone number of the company that prepared the report. State that the company that prepared the report did not make the decision to take the adverse action. State that the individual has the right to challenge the accuracy or completeness of the information provided. Indicate that the person can obtain a free additional report from the credit reporting agency upon request within 60 days.
ERROR NO. 7 Failing to complete the paperwork.
Form I-9, IRS Form W-4, New Hire Report to State. Each employer must complete the forms. Keep copies and obey local regulations. If you are a new business, before hiring employees you must have an employer identification number. To obtain a Form SS-4 file. An employer must also register with California’s EDD after paying more than $100 in total wages to one or more employees in a calendar quarter. Entry forms can be ordered from the EDD website or downloaded.
Immigration laws prohibit employers from hiring aliens who do not have permission to work in the United States. You and the employee must complete Form I-9 Employment Eligibility Verification. This one-page form is retained by the employer and can be used to show that the employer complied with the law and took the necessary steps to determine that the employee was legally authorized to work in the United States. .
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