Smart hiring: tips for avoiding potential legal perils and costly mistakes.

Many employers are becoming justifiably cautious when disciplining employees. Employment laws are vast and intricate, and often prove a trap for unwary employers who take discharge, demotion or other disciplinary actions with their employees without fully comprehending potential legal issues. Unfortunately, those newly cautious employers are not paying similar attention to the hiring process and its potential legal perils.

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State and federal law regulates the means by which employers advertise available employment, create applications, interview candidates, require pre-employment medical examinations, conduct background checks, etc. Additionally, many recent developments in the law should make employers rethink or rewrite their hiring policies in an effort to minimize potential liability.

The first step to creating a valid hiring procedure is understanding what the law prohibits and requires. Most employers are familiar with the bulk of discrimination laws that protect applicants and employees, such as race, sex, religion, age (over 40), national origin and disability. In Michigan, however, additional categories not as well known, such as marital status, height, weight and age (all ages) could set a legal trap for unknowing employers.

Advertising positions -- Before the first interview, employers must be extremely cautious in abiding to strict regulations governing the advertising of employment positions. In this regard, "help wanted ads" cannot discriminate based on the protected list of characteristics. Examples of advertising that could bring trouble include: "help wanted male" or "able-bodied candidates only" or even "supplement your retirement income."

Employee applications -- The employment application itself must not ask a candidate to supply date of birth, sex, citizenship, dates of graduation, marital status, photographs, birthplace, etc. Questions that reveal protected characteristics are also prohibited on employment applications.

Employers should keep in mind some basic considerations when engaging in the hiring process:

* First, avoid hiring people "just like you." It is a natural human tendency to associate oneself with others of similar background. In the hiring process, however, this can and often does lead to discriminatory, if unintentional, employment decisions. Management and human resources personnel in charge of hiring should be alerted to these tendencies, and an oversight capacity should be initiated to maintain nondiscriminatory practices.

* The hiring manager should clearly understand the position requirements for the job. Each requirement should be job-related and based on the legitimate needs of the employer. Eliminating unnecessary requirements will help avoid claims that the requirements are discriminatory in nature. Also, explain to each applicant the job requirements and provide a written job description, if applicable.

* During the interview, use a list of lawful questions and stick to the script. Also, employ a standard interview rating form to summarize the results of the interview and evaluate the applicant based on nondiscriminatory, job-related criteria.

* Always check references! It is simply astonishing that a large number of employers skip this vital part of the process. References can alert employers to serious problems that they don't need to inherit. Additionally, employers should avoid asking references questions about the applicant's age, race, religion, disability, etc.

Employers can take advantage of pre-dispute arbitration agreements, often included in the employment application itself, to avoid lengthy, expensive court litigation that may arise out of the employment relationship. Many employers have also begun to seek agreements from employees to shorten the period of time in which employment claims must be brought. These and other opportunities are available to employers when creating a sound policy for handling job candidates.

Spending suitable preparation time and effort in advance of the hiring process to create a uniform, lawful hiring procedure will be of great benefit to employers and greatly minimize claims of unlawful treatment.

Jeffrey D. Wilson is an attorney with Raymond & Prokop PC in Southfield, a Silver-level member of the Detroit Regional Chamber.

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