Getting to “you’re hired!” without a lawsuit
Unfortunately, compliant hiring practices can sometimes be overlooked by hotels rushing to fill vacant positions, but following proper protocol is crucial. These practices not only give applicants confidence they are applying to a well-run business, but they reduce the risks of an unnecessary lawsuit or discrimination claim.
Here are five “need-to-know” requirements to ensure finding your next star employee goes smoothly.
1. JOB POSTINGS
Job postings can be a helpful tool to attract quality applicants, but many hotels may be surprised to know that postings are governed by legal requirements. For example, employers cannot use job postings to screen people with criminal backgrounds. In fact, the California Department of Fair Employment and Fair Housing (DFEH) actively searches online job advertisements that unlawfully state that applicants with a criminal record should not apply. Hotels should not include language such as “no felons” or “must have a clean record.” Conversely, some states and cities have equal pay laws that require employers to disclose pay information in a job posting. In New York City, employers are required to include salary ranges in all job listings.
2. EMPLOYMENT APPLICATIONS
Many jurisdictions have “ban the box” or “fair chance” laws that prevent employers from asking about criminal backgrounds until after a conditional offer of employment is made. While it can be counterintuitive, these laws generally don’t permit a job application to ask about arrests or felony convictions. Applications that haven’t been updated should be reviewed for compliance as soon as possible.
The interview is an opportunity to evaluate an applicant’s potential fit, but it’s also an opportunity for managers to inadvertently ask discriminatory questions. Managers need to steer clear of any questions directed at protected categories, such as an applicant’s age, medical status, or citizenship status.
4. BACKGROUND CHECKS
If an employer screens applicants with criminal background checks, the Fair Credit Reporting Act (FCRA) requires a specific disclosure. The disclosure must be clear and conspicuous, exist as a standalone document, and be signed by the applicant. It requires that the disclosure contain specific information and nothing more. Some employers include additional information such as liability waivers, which can lead to significant penalties if not in strict compliance with FCRA.
If a criminal conviction turns up, a conditional offer cannot be rescinded unless very specific steps and procedures are followed. An employer cannot rescind simply because they disapprove of certain past behavior. Rather, the employer must demonstrate a strong link between the conduct that underlies the conviction and the particular risk in the workplace. Employers should consult with their employment attorney before rescinding any offer.
5. HIRING UNDOCUMENTED WORKERS
Employers must verify an employee’s work authorization by completing the Employment Eligibility Verification (I-9) Form and reviewing documents that confirm the employee’s identity and employment authorization. Failure to confirm an employee’s work authorization can result in penalties and even criminal prosecution. Of course, if a document appears to be genuine and related to the worker, the employer must accept it. On the other hand, employers are not allowed to request documents beyond what is required by the Form I-9 “List of Acceptable Documents.” Hotels should maintain a clear record to show they followed I-9 procedures to show that any undocumented workers weren’t hired intentionally.
Are you asking the wrong questions?
Here are some examples of interview questions that could land you in hot water vs. better versions that will keep you on the right side of the law. Training managers on these important distinctions is key.
WRONG: “Do you have any medical conditions?”
RIGHT: “Can you perform the essential functions of your job?”
WRONG: “Are you an illegal alien?”
RIGHT: “Are you authorized to work in the U.S.?”
WRONG: “What year did you graduate from high school?”
RIGHT: “Do you have a high school degree or equivalent?”
This article provides an overview of the law and is not intended to be, nor should it be construed as legal advice for any particular fact situation. For additional information regarding how this issue may affect your business, please contact the authors, John A. Mavros or Nelly Pineda of Fisher Phillips, LLP, at (949) 851-2424.