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Hiring this Year? Avoid Legal Hiring Pitfalls

Updated: Nov 5, 2020

By Sarah Everhart

Image of man writing notes. Photo Credit Edwin Remsberg

The article is not a substitute for legal advice. See here for the site’s reposting policy.

If you are planning on hiring workers for the farm this year you will likely need to create a job advertisement and interview applicants. Time spent crafting job descriptions and interviewing candidates provides valuable information to both the applicant and employer by communicating each other’s expectations. This post will outline some steps you can take to avoid common legal pitfalls in the hiring process.

The majority of recommendations outlined in this post are meant to avoid potential discrimination. Federal and state laws prohibit discrimination in all aspects of the employment process starting with hiring. Employers cannot discriminate on the basis of race, color, religion, sex, national origin, disability or age.

The Americans with Disability Act (ADA) protects employees from job-related discrimination based on a disability. The ADA does not require an employer to develop a detailed job description. A well-written job description, however, which was prepared before advertising or interviewing applicants is evidence of a position’s essential functions and can be useful in defending a claim of disability discrimination.

A job description should include the qualities and qualifications that the position requires, such as skills, physical abilities, licenses (CDL), etc. Examples of needed physical abilities include the ability to carry or move heavy equipment, regularly ascend or descend a ladder, or stand or sit for long periods of time, etc.. In addition to describing the physical abilities needed, the job description should include how often the physical requirements will be needed by using words like “occasionally,” “frequently,” and “constantly.” Employers should avoid including physical requirements that are not essential to the position. A well-crafted job description will also include, as an essential function of the job, the ability to work in hazardous or unusual conditions such as outdoors and/or inclement weather conditions and how often the person in this position is exposed to these conditions. Also include a description of any required irregular working hours such as overnight, weekends, overtime, etc. Check out this source for more information on crafting ADA-compliant job descriptions.

In order to avoid claims of discrimination, it is important for employers to carefully consider their interview questions – before the interview – and avoid questions related to the protected categories outlined above. For example, asking an applicant when they graduated from high school can be interpreted as asking about the applicant’s age. Another example of an impermissible question would be asking the applicant if they are a U.S. citizen. It is permissible, however, to ask an applicant whether they are eligible to work in the U.S.. Check out this source for more information about questions to avoid.

Some examples of appropriate interview questions include:

  1. Tell me about yourself.

  2. What aspects of this job appeal to you?

  3. What makes you a good candidate for this position?

  4. What questions do you have for me?

Employers are not allowed to ask an applicant whether he/she has a disability that would prevent them from performing certain job tasks, but they may ask whether an applicant is able to perform the “essential functions” of a position (those functions outlined and labeled as essential in the job description such as the ability to frequently lift a certain amount of weight).

If an employee informs an employer of a disability, employers must consider whether it is possible to reasonably accommodate the disability. Examples of reasonable accommodations include, but are not limited to, modifying equipment or devices and/or adjusting work schedules.

During the hiring process, employers acquire employment records such as resumes, application forms, etc. to gather background information on job applicants. Any time you use an applicant’s background information to make an employment decision, you must comply with federal laws that protect applicants from discrimination. Additionally, employers are required to retain all records, regardless of whether the applicant was hired, for one year after the records were made, or after a personnel action was taken, whichever comes later.

For some great information about avoiding legal missteps after a new employee is hired, check out this past post.

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