By Susan M. Corcoran with Jackson Lewis P.C.
Today’s manufacturers must be creative, yet transparent, in attempting to attract entry level and semi-skilled applicants to positions in good work environments with competitive pay and benefits (despite out-of-date misconceptions about the typical manufacturing work setting). Manufacturers need to attract the most talented, diverse, and skilled workforce.
As part of the process to get applicants in the door, rather than focusing primarily on the general qualifications and education of a candidate, employers have found skill-based hiring to be more productive. That means shifting from the traditional way of attracting and considering applicants to a newer, simpler process involving more technology, including applicant-tracking systems, and more user-friendly processes for the candidate. Employers must consider today’s evolving hiring practices and how to minimize risk.
Shorter Application Forms
Lawful pre-employment inquiries have always been the cornerstone of gathering information to make the right selection decision. However, that a lengthy application process may turn off a candidate is a growing fear in today’s tight labor market. Consequently, many companies have shifted to a relatively minimal, on-line approach, asking the applicant in writing as few questions as possible up front. For example, in today’s virtual business environment, it may no longer be necessary and relevant to ask, “Are you willing to travel?” or “Are you willing to relocate?” For various reasons, companies have eliminated educational history as a consideration (and mandate) for certain positions, as they deem those types of questions no longer relevant and consistent with business necessity (depending upon the job). One benefit of a “less is better” approach for the written application is narrowly focusing on the must-have questions for the position, such as skills and training and employment history.
Although “less is better” may be the candidate’s preference, the company must minimize legal exposure by understanding the risks and steps it should take as part of the smart hiring process. For example, the “less is better” application form still needs to comply with jurisdictional requirements. One example is Massachusetts’ requirement that certain lie detector verbiage is required on the application form. Similarly, Maryland requires specific language regarding lie detectors, and Rhode Island requires the application to include whether the employer is covered under its workers’ compensation law.
Manufacturers, therefore, should check with legal counsel about multi-jurisdictional mandates for applications to determine what is required to remain on the form despite their best efforts for a minimalist approach.
With less written data provided by the applicant, there is a greater need for the company to effectively talk with the candidate. This is a great opportunity to get to know the person, sell the organization, and ask the right questions during the interview process to determine if the candidate is qualified. Typically, there should be a consistent communications process, where the line of questions for one candidate is like others in the same or similar job grouping. Creating a one-pager of suggested interview questions for managers helps streamline the process, provides a lawful, appropriate dialogue with the applicant, and assists documentation.
Part of the dialogue could include the candidate raising the need for a reasonable accommodation to participate in the hiring process. This is a type of accommodation request that manufacturing employers should respond to promptly, pursuant to its obligations under the Americans with Disabilities Act. The U.S. Equal Employment Opportunity Commission has published a “Hearing Disabilities in the Workplace and the Americans with Disabilities Act” technical guidance. The guidance provides useful information on the guardrails of permissible inquiries in the pre-employment phase. These guardrails apply not only to candidates with hearing disabilities, but to candidates with other disabilities as well.
No doubt the “less is better” approach aids accessibility of the application process and increases the likelihood that individuals will complete the process. It is then up to the manufacturer-employer to develop a process of further inquiry to ensure a smart hire.
Post-Offer, Background Checks
Obtaining only abbreviated information from the candidate means it is more important that employers take appropriate steps to verify information provided by the individual and, as appropriate, conduct a background check. Verification of information through checking employment references, for example, has long been part of an employer’s process (along with background checks) to reduce the risk of negligent hiring.
If other background checks are conducted by using third-party consumer reporting agencies, such as for criminal background, care should be taken to follow any applicable state law, as well as the federal Fair Credit Reporting Act, if applicable. The dialogue with the candidate in the “less is better” application process is heavily relied upon should a job-related conviction appear on a background check report (warranting an individualized assessment), and some information, such as longer-term employment history, may not be revealed with a “less is better” application form.
There are simple processes and positive communications a manufacturer can put in place to lawfully attract applicants. As with other aspects of workplace law, even when using “less” words on an application form or creating a follow-up process to verify information, legal counsel should be consulted to ensure compliance with applicable law.
If you’d like to speak to an HR expert about your business, connect with us.
JACKSON LEWIS P.C. (“FIRM”) PROVIDES THE INFORMATION IN THIS POST FOR GENERAL INFORMATIONAL PURPOSES ONLY. THIS POST SHOULD NOT BE RELIED UPON OR REGARDED AS, LEGAL ADVICE. NO ONE ACCESSING OR REVIEWING THIS POST, WHETHER OR NOT A CURRENT CLIENT OF THE FIRM, SHOULD ACT OR REFRAIN FROM ACTING ON THE BASIS OF SUCH CONTENT OR INFORMATION, WITHOUT FIRST CONSULTING WITH AND ENGAGING A QUALIFIED, LICENSED ATTORNEY, AUTHORIZED TO PRACTICE LAW IN SUCH PERSON’S PARTICULAR STATE, CONCERNING THE PARTICULAR FACTS AND CIRCUMSTANCES OF THE MATTER AT ISSUE. THE POST MAY NOT REFLECT CURRENT LEGAL DEVELOPMENTS, OR LAWS OR RULES THAT MAY APPLY IN PARTICULAR JURISDICTIONS. THE FIRM AND ITS LAWYERS EXPRESSLY DISCLAIM ALL LIABILITY IN CONNECTION WITH ACTIONS TAKEN OR NOT TAKEN BASED ON ANY OR ALL OF THE CONTENTS OR INFORMATION ACCESSIBLE THROUGH THIS SITE. ANY INFORMATION ABOUT PRIOR RESULTS ATTAINED BY THE FIRM OR ITS LAWYERS IS NOT A GUARANTEE OR WARRANTY THAT A SIMILAR OUTCOME WILL BE ACHIEVED.
THE FIRM IS NOT RESPONSIBLE FOR THE CONTENT, OPERATION, LINKS OR TRANSMISSIONS, OR ANY INFORMATION PROVIDED ON ANY OTHER PART OF ASURE SOFTWARE, INC.’S WEBSITE OR ANY THIRD-PARTY WEBSITE WHICH MAY BE ACCESSED BY A LINK FROM THIS WEBSITE.
NOTHING PROVIDED BY THE FIRM IS INTENDED TO FORM, AND WILL NOT CREATE, AN ATTORNEY-CLIENT RELATIONSHIP.
THIS POST MAY BE CONSIDERED ATTORNEY ADVERTISING UNDER THE RULES OF SOME STATES. THE HIRING OF AN ATTORNEY IS AN IMPORTANT DECISION THAT SHOULD NOT BE BASED SOLELY UPON ADVERTISEMENTS.
STATEMENT IN COMPLIANCE WITH TEXAS RULES OF PROFESSIONAL CONDUCT: UNLESS OTHERWISE INDICATED IN INDIVIDUAL ATTORNEY BIOGRAPHIES, LAWYERS RESIDENT IN THE FIRM’S VARIOUS OFFICES ARE NOT CERTIFIED BY THE TEXAS BOARD OF LEGAL SPECIALIZATION.