Potential legal problems abound for unwary employers during the hiring process.  Employers must gather useful information about an applicant in order to make sound decisions while not violating discrimination and privacy laws.  Every employer should develop a formal hiring process which it follows consistently, even when hiring friends or relatives.  Bad hiring decisions often lead to lost time, bad feelings and higher insurance costs.

Safe hiring practices begin with good recruiting practices and good recruiting starts with having a good job description.  Identify the key requirements necessary to perform the job.  These should include:

• Work history / experience
• Education / training
• Skills needed
• Personal characteristics, if job related

Recruitment ads should be based on these requirements and not on protected group traits such as: specific age limits, sex characteristics, racial traits, national origin, religious preference, or physical characteristics.

All applicants should complete an employment application.  The application should only ask employment related questions.  Every employment application should contain a statement that the employer is an Equal opportunity employer and does not discriminate on the basis of race, color, religion, national origin, ancestry, sex, sexual orientation, physical or mental disability, marital or veteran status, or age.  All applications should require the applicant to list all prior work experience regardless of whether or not a resume has been provided.  Applicants should be required to sign a release authorizing the employer to call the applicant's prior employers and authorizing prior employers to discuss the applicant's work record.

In Massachusetts, employers may not use lie detector tests.  All employment applications must contain the following statement:  "It is unlawful in Massachusetts to require or administer a lie detector test as a condition of employment or continued employment.  An employer who violates this law shall be subject to criminal penalties and civil liability."

In addition to being careful about the content of the employment application, employers should make it clear to the applicant that the application does not constitute a contract and that if the applicant is hired, his or her employment is "at-will".  The applicant should be required to certify that his or her answers on the application are truthful.  Dishonesty on an application can justify termination.

Interview questions must be job-related and avoid topics which may be discriminatory.  Preparing a "standardized interview" helps assure consistency, minimizes the risk of asking improper questions, and assists in documenting that the same job-related information was asked of / obtained from all individuals.

At least two references should be checked either before offering employment or as a condition to offering employment.  When calling for a reference, indicate that you have the applicant's permission.  Verify dates of employment and job function.  Identify key skills / qualifications needed for the position and ask questions related to those areas.  Ask the prior employer if they would re-hire the applicant and why or why not.

Having and following a set hiring process which includes a thorough review of the application and references, will help to avoid the liability of negligent hiring.   Negligence is the failure to exercise due care under circumstances where the legal duty to care is owed another.  By not conducting adequate and appropriate reference or background checks, an employer could unknowingly hire someone whose past history indicates the possibility of endangering the property or lives of others.