In the current job market, many companies are struggling to retain good talent. In many industries, such as construction, elder care, or manufacturing, high employee turnover is hurting productivity and making difficult to provide the best possible service to customers, clients, and patients. Many issues with retention can be remedied by preventative measures during the hiring process. Avoiding litigation and problem employees at the outset will bring consistency to your workforce and allow your organization to provide the best service possible.  

  1. Understand Your Legal Obligations

Companies need to avoid legal pitfalls through potential discriminatory hiring process. Under Federal law,[1] it is illegal to discriminate against someone (applicant or employee) because of that person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. Employers need to review hiring processes, as policies and practices may have a disproportionately negative effect on applicants or may be discriminatory if the polices or practices at issue are not job-related and necessary to the operation of the business. 

  1. Draft A Non-Discriminatory Job Posting with a clear job description

Ensure the job posting is narrowly tailored to the job description, and does not unintentionally discourage certain applicants from applying. For example, watch for unintentional discriminatory statements soliciting “recent college graduates” or “men” which could discourage application. Companies should also review any job application form to ensure no questions could cause liability. Additionally, a clear job description will help an employer avoid soliciting unnecessary and potentially discriminatory information from applicants. A clear descriptions will also help employees know the position they are looking to apply for, making it less likely they become unhappy in their position down the road. 

  1. Cast A Wide Net

Where companies solicit employees can cause potential legal issues. Advertising in only one forum, like college campuses, opens an employer to age discrimination as it could result in the exclusion of age 40+ candidates. Companies should advertise in a wide variety of sources: college campuses, trade magazines, general internet job sites, state-specific job forums, etc. Casting a wide net also makes it more likely you will find the best candidate for the job who is more likely to stick with the organization.

  1. Establish An Initial Screening Process

Companies should consider using a recruiter or multiple recruiters who have a demonstrated history of good performance to screen and select initial candidates. Additionally, a first-step Blind CV Review to select candidates can help avoid legal issues and to maximize objectivity in the hiring process. An initial telephonic screening process, utilizing a scripted and scored questionnaire, can help narrow down the applicants to those possessing the threshold job requirements and can help you find the best fit for the position.

  1. Use Structured Interviews

Interviews should use a panel of at least two and preferably three people, and those interviewers should try to use a scored Standard Questionnaire, narrowly tailored to the job description. The interviewers should take objective notes and score all candidates. The interviewers must take care to not ask discriminatory questions, including often well-intentioned questions concerning the candidate’s spouse, family, religious or political affiliations e.g. “Do you have any children?” “Where do you go to church?” Taking this degree of care in hiring will also ensure a comprehensive hiring process which will help you find the applicant most likely to fit well within the organization.

All policies should be reviewed by legal counsel to minimize the chance for litigation or legal issues in the future. If you have any questions about hiring, contact a Goosmann attorney in Omaha, Sioux City, or Sioux Falls today!


[1] Title VII of the Civil Rights Act of 1964 (Title VII); The Pregnancy Discrimination Act; The Equal Pay Act of 1963 (EPA); The Age Discrimination in Employment Act of 1967 (ADEA); Title I of the Americans with Disabilities Act of 1990 (ADA); Sections 102 and 103 of the Civil Rights Act of 1991; Sections 501 and 505 of the Rehabilitation Act of 1973; The Genetic Information Nondiscrimination Act of 2008 (GINA)

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