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Avoid These 7 Recruiting-Related Legal Issues

What is one recruiting-related legal issue? How can it be avoided?

To help you best avoid recruiting-related legal issues, we asked hiring managers and experienced recruiters this question for their best insights. From asking unlawful questions to flouting local labor laws when recruiting remote workers, there are several recruiting-related legal issues that are critical to watch out for when recruiting candidates for your organization.

Here are seven recruiting-related legal issues you need to avoid:

  • Asking Job Candidates Unlawful Questions

  • Candidates Breaching the Non-Compete Clause

  • Posting Jobs that Suggest Age Discrimination

  • Using Third-Party Lists to Recruit Candidates

  • Turning Down Job Applicants Because of Their Age

  • Advertisement Discrimination

  • Flouting Local Labor Laws When Recruiting Remote Workers

Asking Job Candidates Unlawful Questions

One topic to avoid in recruiting is asking questions of any potential candidate that are unlawful. For example, it might seem obvious that you cannot ask potential employees about their race, sexual orientation, pregancy status, protected health information, or other similar subjects. But employers ask these questions all the time. It is always a best practice to focus questions on the job itself, and limit personal inquiries to subjects such as hobbies, sports, professional associations, or similar.

Robert Reder, Blythe Grace PLLC

Candidates Breaching the Non-Compete Clause

A non-compete agreement or clause or a restrictive covenant is a legally enforceable and binding agreement that, in most cases, stays valid even after an employee has left a former employer. Most employees remain unaware of how serious this clause is and often assume that once their employment agreement with a company is terminated, they are free from all legal obligations towards it.

As a recruiter or responsible organization, however, you have to direct your HR team to pay due attention to this possible complication and verify these non-compete details with the employee in the early stages of recruitment. When in doubt, it is recommended that your team even gets in touch with the HR team from the candidate’s former organization to clarify any doubts. Only if a candidate is confirmed to be free from any non-compete clauses should you enter into an employment contract with them.

Posting Jobs that Suggest Age Discrimination

You'll often see job posts and other recruiting material that says a job is for "recent college graduates" or similar phrases. Under the Age Discrimination in Employment Act (ADEA), it is illegal to discriminate against people who are 40 or older. Using language suggesting that a job is only open to people who are in their 20s potentially creates issues. Rather than using language to describe the candidate, it's better to describe the tasks the candidate will perform and the level of experience that is required for the job. This approach avoids closing off applicants based on age, while still indicating that the job is entry-level.

Bobby Klinck,

Using Third-Party Lists to Recruit Candidates

One recruiting-related legal issue is the use of third-party lists to recruit candidates. The use of third-party lists can be a liability if you don't have the right permissions to obtain them. For example, if a candidate has not signed a release allowing you to use their contact information, then it's likely that you will be violating their privacy rights and could be held liable for any harm caused to them as a result.

In order to avoid any legal issues, you must first make sure that the list has been created legally and with all appropriate permissions granted by those included on it. You also need to ensure that your use of the list is not discriminatory in any way. If you cannot guarantee these things, then it is probably best to avoid using third-party lists altogether. In addition, if you're going to use a third-party list as a source of candidates anyway, be sure that you are obtaining consent from each person on that list before contacting them.

Shaun Connell, Connell Media

Turning Down Job Applicants Because of Their Age

One legal issue that can unpin recruitment is age discrimination. Many people looking for work in their late 40s or 50s run into this. A company wants someone with experience but also wants someone who can put 20 years or more into the company so they have a good ROI. That puts the company in a bind when it comes to older people coming to recruitment events. You can't consider age when it comes to recruiting under the law but a company may want someone who can easily work longer hours, do more physical labor and stay with the company for more years. Yet, the experience of this older worker is more than anyone else. The thought likely crosses minds too that they could sue if you turn them down.

Advertisement Discrimination

Discrimination isn't always intentionally malicious, which can make it harder to spot at all stages of hiring. In particular, job posting themselves can often contain both veiled and overt forms of discrimination that can be missed if they aren't carefully screened. In many places, job postings must avoid giving preference based on religion, gender, race or politics among other things. You can make a checklist of things to avoid by checking any laws and policies specific to the area you're advertising your job in. Use that checklist when creating your job posting to ensure you follow all proper guidelines. It's also a good idea to have multiple sets of eyes check the listing before posting it. This will provide an extra pair of eyes that can help catch any issues you might otherwise be blind to.

Caleb Ulffers, Haven Athletic

Flouting Local Labor Laws When Recruiting Remote Workers

One recruiting-related legal issue is to ensure you are able to hire the remote candidates you are interviewing and that you know the local employment laws. Virtual work has widened the talent pool yet opened up a can of worms in terms of labor law. Hiring and employment guidelines can vary from country to country and even from state to state, and ignorance of regulations can land recruiters in hot water. I've heard of instances where inexperienced interviewers at smaller companies extended an offer and rejected other candidates before realizing that they were not established and able to employ in the candidate's state of residence. Save yourself time and legal headaches by brushing up on guidelines for hiring in different regions, or consider limiting the geographic reach of the role when appropriate.

Michael Alexis, Tiny Campfire

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