Recruitment, reference checks and record keeping.
By Kay Robinson
This is the first of three consecutive articles about human resources basics. In this issue, Kay Robinson, SPHR, Director of Human Resources Consulting Services with RSM McGladrey, discusses the dos and don’ts of recruitment, reference checks and record keeping. This article should not be construed as legal advice.
When your company is not large enough to support a full-time human resource staff member, chances are you—as the owner or manager—wear the human resource hat. So how do you know what to do or where to go to make sure you are complying with both federal and state laws?
While some laws don’t “kick in” until you have 10, 15 or even 20 employees, some federal and state laws actually apply when you have only one or two employees.
It is important to know the basic laws. You may want to consider subscribing to some kind of service, such as “Business and Legal Reports,” to get regular updates, or some kind of human resource professional society, such as the Society for Human Resource Management, where you can easily access information. Most companies rely on their attorneys, but sometimes those attorneys aren’t necessarily versed in specific employment law issues. Ask them, however, and make sure they are keeping you updated with employment-related information.
Did you know that just recently a new I9 form was issued? Did you know that there is much discussion right now that employers will have to be more diligent when they receive a letter indicating that a social security number doesn’t match “in the system”? As the owner of a business, you need to be able to stay on top of the human resource requirements. Many states changed the minimum wage this past year, requiring you to pay the new federal minimum wage of $5.85 or the new state minimum wage rate if it is higher. Do you have the new posters with the new minimum wages posted?
Your recruitment practices must be non-discriminatory, no matter the size of your company. While federal law (the Civil Rights Act) covers private employers who have 15 or more employees, most state laws provide equal employment opportunities to protected categories for companies with one, two, three or more employees. The protected categories aren’t just the ones we are most familiar with, such as age, gender, religion and national origin. In Michigan, for instance, you can’t discriminate based on height, weight, marital status or genetic information. So you will want to make sure you have a legal application (and that you require applicants to complete an application, not just give you a resume). Your application should clearly explain to applicants so they understand that employment is “at-will” (meaning that you can terminate the employee for any or no reason except for a reason that is protected, and the employee can resign for any or no reason). The application should also indicate that the employee can be terminated for falsifying his or her application.
In addition, you will want to make sure that your job ads are non-discriminatory (don’t say, “mature applicants only”) and be sure that the questions you ask candidates in interviews are legal. Train your supervisors if they interview candidates. Make sure supervisors don’t promise applicants a job or a certain rate of pay. Even an oral promise may be construed as a binding contract. If you decide to test candidates, make sure that the test is job-related and that it has been validated. The validation process is done by the company or an outside consulting firm and confirms that the selection procedure is not discriminatory. If there is a charge of discrimination (either at the state or federal level) the company would use the results of the validation analysis to prove that the test was not discriminatory.
While reference checks are not required by law, employers may be held liable for negligent hiring for an act by the employee that the company should have foreseen. So even if you believe that you can’t get any information because companies will only give you name, rank and serial number, it is important that you document that you tried to secure a reference.
When you bring an employee on board, make sure you have him or her complete the I9 form within three days of the start date. The latest form is dated 6/5/07, and you can download a copy from the U.S. Citizenship and Immigration Services (part of Department of Homeland Security) web site. You can’t tell the employee what documents you want to see. And you can’t collect the information before the individual is on board. You must keep the I9 at least three years (a separate file is recommended, not in the personnel file) or for one year after an employee terminates, whichever is longer. Speaking of personnel files, don’t keep medical information in the personnel file, and restrict access to the files—they should be locked. You will also want to secure authorization from the employee before releasing any information to an outside agency.
These are just a few of the dos and don’ts in the recruitment, record keeping and reference checking areas within human resources. Be aware of your own human resource practices. Ask yourself whether your practices could be perceived as discriminatory. This process will help you minimize your liabilities down the road.