Avoiding Common Employer Pitfalls: Dos and Don’ts in the Application and Hiring Process

As employers continue to compete for top talent, it’s essential to ensure that hiring practices are legally compliant and aligned with anti-discrimination and other applicable employment laws. From job postings to interviews, employers must avoid questions and procedures that could expose them to liability under federal and state laws.

Below is a brief practical guide outlining key dos and don’ts (best practices) related to commonly litigated areas in the hiring process.

1. Age Discrimination:

Some states ban asking about an individual’s age during the application process outright. Even in states that do not, asking such questions could open your business up to legal risk related to an age discrimination claim should you fail to hire an applicant after making such inquiries.

❌ Don’t:

• Ask an applicant’s age or date of birth on the application.
• Ask when the applicant graduated from high school or college, which can indirectly reveal age.
• Use phrases like “digital native,” “young and energetic,” or “recent college graduate” in job postings, which may imply an age preference.

✅ Do:

• Focus on job qualifications, years of relevant experience, and skill set.
• Ensure job postings are age-neutral and avoid language that implies a preference for younger workers.
• Train hiring managers on implicit age bias and applicable laws.

2. Disability-Related Inquiries

Similar to questions related to age, asking an applicant questions about whether or what disability they may have in the interview process could open an employer up to a claim of disability discrimination if an applicant is not selected for the position. In addition, there are specific requirements for medical examinations and drug testing which must be adhered to in the application and hiring process.

❌ Don’t:

• Ask applicants if they have a disability or about the nature or severity of a disability.
• Ask about medical history, past surgeries, or prescription drug use.
• Require a medical examination or drug test before a conditional offer of employment is made.

✅ Do:

• Ask whether the applicant can perform essential job functions with or without reasonable accommodation.
• Provide a copy of the job description and ask if the candidate can meet the physical or mental requirements with or without accommodations.
• After a conditional offer, follow lawful post-offer drug test protocols applied consistently across all candidates in the same job category.

3. Criminal History: “Ban the Box”

Many states and local jurisdictions have specific laws that prohibit employers from inquiring about criminal background until after an offer has been made or after a certain number of interviews have been completed. In addition, states and localities frequently have laws that cover what criminal history can be considered based on the nature of the crime, the timing of the conviction and various other factors.

❌ Don’t:

• Ask about criminal convictions on the initial job application if your jurisdiction has a “ban the box” law.
• Inquire into arrests or expunged records unless legally permitted.
• Automatically reject candidates based on criminal history without considering the nature of the offense, its relation to the job, the time since the conviction and other factors outlined in your jurisdiction’s laws.

✅ Do:

• Delay criminal background checks until after a conditional offer, unless your state permits earlier inquiry.
• Conduct individualized assessments of criminal records to determine relevance to the job.
• Review and comply with applicable federal, state, and local laws regarding criminal background checks and adverse action notices.

4. Salary History: Equal Pay Act and State Salary History Bans

States and localities also frequently have laws that ban salary history inquiries in an effort to prevent continued pay disparities among members of protected classes (e.g. women, minorities).

❌ Don’t:

• Ask applicants about their current or prior salary, wage, or benefits in jurisdictions where salary history inquiries are prohibited.
• Rely on prior pay to justify pay disparities between employees of different genders or races.

✅ Do:

• Set compensation based on market data, internal equity, and job-related factors such as experience and qualifications.
• Disclose pay ranges where required by law (e.g., New Jersey, New York, and California).

5. Citizenship and Work Authorization: Immigration Reform and Control Act (IRCA)

Employers must comply with employment verification requirements and cannot impose their own preferences with regard to which documents must be provided. Taking this type of action could lead to claims of discrimination.

❌ Don’t:

• Ask about citizenship status or country of origin before making a job offer.
• Require specific documents during the Form I-9 process that are not mandated.

✅ Do:

• Ask whether the applicant is legally authorized to work in the United States.
• Follow I-9 procedures uniformly for all new hires, allowing them to choose which acceptable documents to present.

Key Takeaway

The hiring process is fraught with legal pitfalls that can lead to discrimination claims, regulatory penalties, or reputational damage. Employers should:

• Review job applications and interview questions regularly to ensure compliance.
• Train managers and HR personnel on federal, state, and local hiring laws.
• Stay current with jurisdiction-specific developments, including “ban the box,” pay transparency, and salary history bans.
• Document the hiring process to demonstrate fair and consistent practices.

For assistance in making sure your hiring practices are compliant or with training your team, please reach out to Partner Tara Humma.

This summary is provided for informational purposes only and is not intended to constitute legal advice nor does it create an attorney-client relationship with Rimon, P.C. or its affiliates.

Tara Humma is a Litigation attorney who focuses her practice on labor and employment matters. Tara has over a decade of experience representing public and private employers of all sizes in states across the country. Tara represents clients in all phases of employment litigation, from initial pleadings, discovery, and motion practice to trial preparation and appeals. Her experience includes a broad range of litigation matters including, but not limited to, claims brought under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA) (including accessibility cases), the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), breach of contract cases related to employment contracts and restrictive covenants and various other state and federal employment laws. Read more here.