This document discusses potential legal issues that can arise during the hiring process and provides tips to avoid negligent hiring and discrimination lawsuits. It outlines key areas of the hiring process that require legal compliance, including writing accurate job descriptions, avoiding inappropriate questions during interviews, properly screening candidates, and conducting background checks before making a final job offer. Following best practices in candidate selection, assessments, reference checks, and offer letters can help employers build a legally sound hiring process.

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How your flawed hiring process
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LEGAL FINE PRINT
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Negligent Hiring Discrimination
Legal
Safe Zone
Person can’t do the job and
you hire them anyway.
Person can do the job and you
didn’t hire them.
Finding Candidates Selecting Candidates Assessments Interviewing Making the Offer

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Negligent Hiring
• Sometimes creates real risk.
• Safety/Health (even one aspect)
• Danger/Defense

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Discrimination
• You have shown favorability of a certain
race/class.
• Race, color, religion, gender, handicap,
age, national origin or any other protected
class can accuse you.
• Something in your screening process
boxed out candidates based on this.

6. #EmploymentLaw
Finding Candidates
• Job Description
• Job Postings/Ads
• Job Applications
These provide written
record of hiring process.

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Job Description
• Include EEOC Compliance and at will disclaimer.
• Include responsibilities of the job.
• Is it a position for a limited duration?
• Be clear about the job and what it includes.

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Job Application
• Includes Required Disclaimers. (Different in Each State)
• Recommended Disclaimers
• Follows ADA Website accessibility requirement. (Title I)
#EmploymentLaw

9. #EmploymentLaw
Job Application
• Avoid any questions that will determine race, age…
• Are disabilities accommodated?
• Ask about past employment.
• Ask for references.
Probably Outdated

10. #EmploymentLaw
Affirmative Action
• Does not apply to everyone.
• Only state and Federal Contractors
• Often will govern a part of the hiring/screening
process.

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Selecting Candidates
• Document who is being considered (pre-selection).
• Document who is selected for the interview from
the candidates that are considered.

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Screening Tools for Before the Interview
• The Internet / Social Media
• Behavioral / Cognitive Assessments
• Preliminary interview

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Using Assessments
• Helps select the right people.
• Adds confidence in the hire.
• Can help avoid negligent hiring.
• Can be objective.

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Validation
• Facial neutrality
• Scientific Validation
• What is considered “good” for a job?
• Avoid “Disparate Impact Claim”.
NOT ALL ASSESSMENTS ARE VALID

15. #EmploymentLaw
Creating an Assessment Job Target
• Prevents comparing candidates to each other.
• Provides recorded benchmark for job.
• Multiple Stakeholders

16. #EmploymentLaw
Interviewing
Questions to Avoid
• Age related questions (What year did you graduate)
• Race related questions (Nice name where are you from?)
• Religion Related questions
• Pregnancy/child rearing related questions

17. #EmploymentLaw
Interviewing
• Documenting the Interview
• Writing information/notes
• Asking effective questions (problem solving, resume, deal
with red flags)

18. #EmploymentLaw
Pre-Offer, Post-Interview Screening
• Skills
Assessments/Tests
• Reference Checking
• Employment/Education
Verification

19. #EmploymentLaw
Making the Offer
• Make it in writing.
• Conditional: Non competes, Work
Eligibility, Other Screening
• Further Screening
• Background Checks
• Drug Tests
• Physical/Fitness For Duty Tests

20. #EmploymentLaw
predictiveindex.com/employment-law
401-861-8235
Download it all.
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TODAY’S PRESENTER
Chair of the Labor &
Employment Practice
Alicia J. Samolis,
Esq.
ajb@psh.com
#EmploymentLaw