When hiring a new employee, it’s important to follow the proper steps to minimize legal risk. The steps below provide guidance on how you can: properly recruit, interview and hire a competent and trustworthy employee; reduce your liability; protect your at-will employment relationships; and reduce your odds of negligent hiring claims.
If you need to fill an existing position, locate the existing job description and make sure that it accurately describes the job’s current essential functions. If you are creating a new position, write a job description that clearly outlines the essential functions of the job, including actual job duties, physical and mental demands, experience needed and qualifications.
Before advertising or recruiting for a position, carefully review the job description and determine whether the position is exempt or nonexempt and what type of employee you should hire to fill it.
You can use a variety of methods to recruit potential candidates for the available position. Choose the method that works best for your needs. Be sure to avoid discriminatory language in your recruiting efforts and be specific about the job’s qualifications and salary range, if applicable.
Employers with 15 or more employees must include the pay scale information in any job posting. California law defines pay scale as the salary or hourly wage range that the employer reasonably expects to pay for the position. If you have 15 or more employees, be sure to include this information in your job postings. If you use a third party to post job applications, you must provide the information to the third party, who must include it in the job posting.
Ask all applicants to complete an employment application, even if they provided a résumé. An employment application can provide legal protection. A proper application requires applicants to confirm the accuracy and truthfulness of the information they provided, authorizes you to check references and also informs applicants that any future employment will be on an at-will basis.
Confirm that your employment applications comply with California laws. Employers are not allowed to ask about criminal convictions prior to a conditional job offer. Employers also are not allowed to ask about an applicant’s salary history. These questions should not be on your job applications.
The sample employment applications, Employment Application - Long Form, and Employment Application - Short Form, allow you to gather a great deal of pertinent information without creating liability for discrimination.
The process of evaluating applicants for a position can involve a number of steps, including looking at résumés, accepting and evaluating written applications, conducting phone interviews and conducting face-to-face interviews.
When you conduct interviews, consider using standard questions for each interviewee to avoid the potential for discrimination. Standardizing questions allows you to evaluate each candidate objectively on an even plane. Be sure all questions are job-related. Train hiring managers to not ask inappropriate questions during interviews (including questions about salary history or conviction history) and to not exaggerate the employment opportunity. It is acceptable to ask about their salary expectations for a position.
Before selecting a new employee, determine what type of background information you might need for the particular job. Checking references is always a good start. Document your attempts to obtain reference information.
California and federal laws may restrict the types and amounts of background information you can obtain. For instance, you may not obtain criminal conviction information prior to a conditional job offer.
After you make the hiring decision, send an employment letter, also called an offer letter, to the applicant you’ve chosen. Employment letters clarify the terms of employment, including such details as the start date; at-will employment status; exempt or nonexempt status; the wage or salary (if the employee is exempt, phrase the pay rate in terms of dollars weekly, biweekly or monthly; if the employee is nonexempt, phrase the pay rate in terms of dollars per hour); benefits, if available.
The employment letter should state whether the offer depends on the applicant passing a medical exam, drug test or reference or background check. If the offer is contingent on the applicant passing a criminal background check, you must follow the detailed notice process required by California law. Use the Criminal Background Screening Checklist.
Be ready for a new employee when they arrive for the first day of work. Put an orientation program in place so you can take care of all the necessary paperwork, provide the proper training and make the new employee feel welcome.
