How to Hire an Employee
Handling recruitment and hiring process is relatively straight-forward in Texas. Check out Part 1 of our talent acquisition blog series to learn how to create a job description and job post. This blog, part two, will help you with learning how and why every organization should collect demographic data, how to create a job application, and document retention.
Note: If your organization is considered a federal contractor or sub-contractor, there are additional requirements not listed in our How to Hire an Employee: Talent Acquisition for Growing Business blog series. Please contact us for guidance.
Employment Discrimination Law
Before jumping into how to create a job application, let’s review employment discrimination law from Part 1 of our talent acquisition blog series. The main thrust of all employment discrimination laws is to make it illegal for employers to treat employees or applicants adversely on the basis of something about themselves that they cannot change, or should not be expected to change.
If an employer has the required number of employees, job applicants, employees, former employees, and an applicant or participant in a training or apprenticeship program are protected by the anti-discrimination laws in the following areas:
Race, color, national origin, citizenship, gender (including pregnancy, sexual orientation, or gender identity), religion, disability, military veteran status, genetic information (including family medical history), as well as the use, gathering, and disclosure of genetic information in the context of employment relationships and disabilities, the perception of disabilities, or association with people with disabilities. Bankruptcy history or bankruptcy claim filing status, individuals 40 years of age or older, and workers compensation history, are protected from discrimination as well. Independent contractors are protected from race/color discrimination.
These areas are referred to a demographics. Part 1 of this blog series outlines thresholds for coverage under employment-related laws. This is quite a bit of information and the great news is that SpruceHR has simplified it for you.
Demographic Data Collection and Best Practices
While some employers are required to track demographic information on applicants and employees, applicant tracking is a recommended practice for all employers to protect against unlawful discrimination claims and to monitor diversity efforts. SHRM says, adherence to these guidelines would strongly suggest an employer is free from unlawfully discriminatory hiring practices. If you would like to know what demographic information your organization is required to track and how, please contact us.
How do you apply this information to the job application? Demographic data and the job application are separate forms and are provided to the job applicant at the same time. Anyone involved in the interview and hiring process should not have access to the demographic data form which may include: sex, race, ethnicity, veteran identification or other demographic data listed in the Employment Discrimination Law section above. The applicant demographic data form is voluntary for the applicant and should be offered twice, at the time the application is completed and when new hire forms are completed.
How can you achieve this? Many employers have a human resources employee that can provide the job application and/or resume to the interviewers and hiring manager and keep demographic forms in a private, separate file. Some employers choose to contract HR consultants to ensure compliance or have an HRIS to store the data separately.
If you use paper applications the EEOC says: If an employer legitimately needs information about its employees' or applicants' race for affirmative action purposes and/or to track applicant flow, it may obtain the necessary information and simultaneously guard against discriminatory selection by using a mechanism, such as "tear-off" sheets. This allows the employer to separate the race-related information from the information used to determine if a person is qualified for the job. Asking for race-related information on the telephone could probably never be justified.
Job Application
According to CareerBuilder, 60 percent of job seekers quit in the middle of filling out online job applications because of their length or complexity. Other industry sources say that abandonment rate may be conservative. This can be expensive if you are paying for a cost-per-click recruiting model.
Traditional thinking holds that lengthy applications will screen out apathetic candidates and good talent will be dedicated enough to fill out more information, said Sarah Gregory, director of research at Punchkick Interactive. The CareerBuilder survey suggests this mindset still holds sway. About 50 percent of responding employers said the length of application processes is a positive because it "weeds out" applicants. "But, in reality, the opposite is true," Gregory said.
SpruceHR agrees with CareerBuilder and Sarah Gregory, Punchkick Interactive concerning losing candidates from a lengthy application process. However, if you have ever posted a position on a job board that requires only a few clicks for the job applicant that resulted in over 1000 applicants, you realize there must be a middle-of-the-road solution.
Considering the information so far:
Lengthy applications can drive away ideal candidates, yet one-click applications can prevent employers from finding the ideal candidate.
Collecting demographic data for all employers, regardless of size, is a good practice.
Anyone involved in the interview and hiring process should not have access to the demographic data.
Demographic data and the job application are separate forms and are provided to the job applicant at the same time.
Job Application Elements
Ask yourself: What information do you really need upfront to decide if you want to move candidates to a next step? SpruceHR recommends:
If you choose to use a job board, redirect the candidate to your website to apply for the position. If you do not have that capability, consider outsourcing the application and screening process to an HR Consultant. An HR Consultant usually has the capabilities to collect job applications on their site.
Below is what we recommend for the job application as the middle-of-the-road solution:
Contact Information: First name, last name, phone number, email address, address
It is permissible to ask about age in two situations: Are you at least 18 years of age? (if the concern is to avoid child labor problems), or a minimum age such as 21 (if the concern is to determine insurability as a driver of company vehicles or operator of certain equipment).
Employment History: Provide an area to upload a resume, cover letter, and references. It is not recommended to require references or a cover letter but to allow a place to provide it if the candidate chooses.
If a resume or LinkedIn profile isn’t available from applicants for a type of position, add an area for employment history on the job application.
Ask: How did you hear about this position? This allows you to understand how candidates found your position or reward your staff for the referral.
Demographic Data: Equal Opportunity - Self Identification: Sex, Race/Ethnicity
Veterans Identification
Include a nondiscrimination statement, at-will disclaimer, and language telling applicants how to request a reasonable accommodation.
Contact us for the full and proper language if needed.
Reminder: Job applications should solicit only job-related information. If a potential question for the application will not help determine who is the best-qualified applicant, do not ask it.
At the end of the application, let applicants know that by signing and submitting the application, they give their consent for various things:
The applicant agrees to submit to any job-related medical exams or drug tests that might be required
If a tentative job offer is extended, the applicant is required to complete criminal background screening and reference check forms
The applicant understands and agrees that if hired, employment will be at will
Optional job application questions:
COVID-19 vaccination questions: Employers should only ask applicants vaccination questions that pertain to the job. Likewise, if the company is not asking employees if they have been vaccinated, it should not pose that question to applicants, either. To learn more visit: https://www.sprucehr.com/vaccination
You can ask whether the applicant is authorized to work in the U.S.
You can ask professional license and certification information pertaining to the position
If needed, you can ask: During the past _____ years, have you been convicted of, or have you pleaded guilty or no contest to, a felony offense? If yes, please explain.
An HR best practice recommended by the State of Texas: if possible, do not ask about criminal history until the tentative offer of employment has been made - that will lower the risk of discrimination based on criminal history for the majority of unsuccessful applicants.
What to collect after a tentative offer is extended to the job applicant:
You do not need the following information to make a tentative offer of employment. The information and form(s) below can be collected after a tentative offer is extended:
References and reference check authorization form
Background check authorization form, including criminal history and drug screening
Birth date, social security number, driver's license number, and college graduation dates
Medical Exam: Under the law, an employer may not conduct medical examinations until after it makes a conditional job offer to the applicant.
Examples of impermissible questions:
Do you have any handicaps or disabilities?
What is your military discharge code? - any military discharge question is not advised
Do you have children? (This would be permissible if the job duties directly require the employee to be a parent.)
Are you a U.S. citizen?
Are you a ______________ (member of a specific type of religion)? (This is permitted only if the job is with that specific type of church, and the duties relate to carrying out the mission of that particular church or faith.)
Are you married?
What are your family plans?
Do you own a car?
Do you own a house?
Have you ever been arrested?
Unless there is a bona-fide occupational qualification or statutory or regulatory requirement involved, do not ask about an applicant's race, color, religion, gender, age, national origin or citizenship, disability, or genetic information.
Record Retention
There are no laws requiring an employer to accept resumes or applications if there are no openings. However, an employer should either keep all unsolicited applications, or throw them all away. "Cherry-picking" can easily lead to disparate treatment claims with the EEOC or a state human rights agency.
According to the State of Texas, The EEOC requires employers to keep solicited job applications for at least one year - it is best to keep them at least 4 years, in order to exhaust all possible statutes of limitations for various employment law causes of action, and the application for the successful candidate for at least 7 years; if EEOC investigates and finds that applications have not been kept, that is not only a recordkeeping violation, but also potential evidence of intent to discriminate.
In summary, lengthy applications are not necessary and can drive away ideal candidates. Moreover, the general theme of federal and state laws, regulations and guidance is that employers should avoid asking an applicant questions that elicit information that cannot be considered in making a hiring decision. Employment applications are not only one of a company's first contacts with applicants and new employees, they are also written documents that can later be used as evidence in an adversarial proceeding. Avoiding common blunders can help employers maintain best practices for employment application materials.
Need some help? SpruceHR is equipped with a comprehensive library of job descriptions, applications and associated forms available à la carte that can be customized by you. We can customize your job descriptions and forms for you as well.
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SpruceHR is a human resource consulting firm that is here to help your organization maximize the potential of your greatest asset, your employees.
Contact us at (281) 502-2200, info@SpruceHR.com, or https://www.SpruceHR.com/
Note: We strive to keep information in our blogs current. This information in this is current and accurate as of May 2021. Please contact us with any questions.