The Legal Minefield of Your Hiring Process

The hiring basics every candidate and HR pro should learn

When companies want to hire new employees, they need to follow certain rules to make sure everything is fair and legal. There are three main parts to this: pre-employment testing, checking the background of potential employees, and being careful about how you hire and talk about employees.

Before someone gets a job, they sometimes have to take tests. These tests help companies find out if the person has the right skills for the job. The important thing to remember is that these tests must be fair. They can’t exclude people because of their background or personal characteristics that have nothing to do with the job. It’s like making sure that everyone who can play the game well gets a chance to try out, no matter where they come from or what they look like.

Background checks take place when companies do some research on people applying for jobs. They look at past jobs, education, and sometimes more personal things to make sure everything matches up with what the applicant declares in their application. There are quite strict rules to protect the person’s privacy and make sure the check is done right.

Potential tort liability sounds complicated, but it’s basically about the responsibility companies have when hiring or providing references for someone who used to work for them. If a company doesn’t do a good enough job of checking someone’s background and that person ends up causing harm, the company could be in trouble. Also, when giving references, they need to be honest, but also careful not to say anything that could unfairly hurt the person’s chances of getting another job.

What You Can and Can’t Ask Before Hiring?

The Americans with Disabilities Act (ADA) sets strict guidelines about pre-employment medical testing to protect applicants with disabilities from discrimination. According to 42 U.S.C. § 12112(d)(2)(A)-(B), employers are generally prohibited from requiring medical examinations or inquiring about an applicant’s disability status before making a job offer. However, they can ask whether an applicant can perform essential job-related functions.

Imagine someone applying for an event coordinator position. This job requires organizing events, handling logistics, and managing staff. The employer cannot ask if the applicant has a medical condition that might affect their ability to coordinate events. However, they can inquire if the applicant can manage the planning and execution of events, which includes coordinating with vendors, managing timelines, and overseeing event setups.

Post-Offer, Pre-Employment Medical Exams

Once an employer extends a job offer, they are permitted to require a medical examination, but the offer can be conditional based on the exam’s outcome. This is outlined in 42 U.S.C. § 12112(b)(6), (d)(3). The purpose of this timing is to protect the applicant’s privacy and to ensure that the exam is truly relevant to the job’s requirements.

The case of Leonel v. American Airlines, Inc., (9th Cir. 2005), illustrates the importance of timing when conducting post-offer medical examinations. It clarifies that an employer may conduct these examinations only after a job offer has been made, and must base any employment decision on the relevance of the examination’s findings to the substantial functions of the job.

In the context of our event coordinator example, suppose the employer offers the job subject to a medical examination. If the exam reveals a condition that the employer believes could affect the applicant’s ability to perform the job, the employer must then determine whether the condition actually interferes with the critical functions of the job or whether a reasonable accommodation can be provided.

Drug Testing Quandary

When companies decide to test job applicants for drugs, there are different rules depending on whether the company is a business or part of the government.

Commercial Sector

In the private sector, state laws dictate how and when drug testing can occur. These laws aren’t the same everywhere, which means a company in one state may have different rules than a company in another state. Some jobs, especially those where safety is really important, such as construction, healthcare or law enforcement, often require drug testing before someone is hired. But even when testing is allowed, companies usually have to follow certain steps to make sure the testing is done fairly. People applying for jobs have occasionally argued that these tests violate their privacy, but these arguments often don’t hold up in court, especially against job applicants.

For instance, in California, the approach to preemployment drug testing for private sector employers is shaped by a combination of state privacy laws, case law, and specific regulations concerning drug-free workplaces. California’s Constitution (Article I, Section 1) explicitly recognizes a right to privacy, which influences how employers must conduct drug testing.

Employers in California must inform applicants about the drug testing policy as part of the application process, ensuring that applicants are aware that drug testing is a condition of employment. Drug tests must be conducted in a manner that respects the applicant’s privacy, typically involving a third-party administrator, ensuring that the collection process is not overly intrusive and consistent with business necessity.

Government Related Employment

For government jobs, the rules around drug testing are stricter because of the U.S. Constitution. This is because a drug test is considered a search of a person, and the Constitution protects people from unreasonable searches unless there’s a specific reason to suspect someone of wrongdoing. Despite this, the government sometimes requires drug tests for job applicants without suspecting them of drug use. Whether or not this is allowed has led to a lot of litigation with mixed results.

Courts have sometimes said yes to these tests, especially for jobs that are really important for safety or national security. For example, air traffic controllers, firefighters, heavy equipment operators have been required to take drug tests because their jobs are so important. The thinking is that the need to keep airports and cities safe can outweigh the privacy rights of job applicants (National Treasury Employees Union v. Von Raab (1989), Knox County Education Ass’n v. Knox County Board of Education (1998)).

On the other hand, for jobs that don’t have much to do with safety or security, such as office administrators or graphic designers, courts may have say that drug testing is not required. In Lanier v. City of Woodburn (2008) and O’Keefe v. Passaic Valley Water (1992), make it clear that not all jobs justify the invasion of privacy that comes with drug testing.

Hidden Risks of Overlooking Character

Negligent hiring is a legal concept that holds employers accountable for hiring people they knew or should have known were unfit for a job, especially when that unfitness poses a risk of harm to others. The principle is based on the premise that employers have a responsibility not only to their employees but also to the public to ensure that their hiring decisions do not endanger others (it would also be useful to refresh your knowledge of negligence in general — see the link below to one of our previous stories).

The nature of negligent hiring can be broken down into three critical elements:

1. Knowledge of Unfitness. An employer either was aware or should have been aware (through reasonable diligence, such as background checks) that a job candidate had issues — be it a history of misconduct, harassment or any characteristic — that could potentially harm others.
2. Decision to Hire. Despite being aware of the potential risks, the employer proceeds to hire the individual.
3. Injury to a Third Party. The unsuitability of the employee directly results in harm to someone else, who might be a colleague, neighbor, or any person coming into contact with the employee as a result of their job.

Furthermore, the liability for negligent hiring can extend beyond situations where an employee is acting within the scope of their employment. For instance, if an employee’s role brings them into contact with the public or certain individuals, and it was foreseeable that the employee’s unsuitability could lead to harm, the employer may be held liable for any injuries caused by the employee, even if those actions occurred outside their official job duties.

For example, in the rush to fill a customer support role, a tech company overlooks a candidate’s aggressive online behavior during the screening process. This candidate had a history of engaging in heated exchanges and making threatening comments on social media platforms. Once hired, the employee used company channels to harass a customer who had filed a complaint, escalating to sending threatening emails directly to the customer’s personal account. Although these actions were taken outside of the employee’s formal responsibilities and on non-company platforms, the tech company could be held liable for negligent hiring. This is because the employee’s prior online conduct should have served as a warning sign to the employer that the individual could pose a risk of harm to customers, making it reasonably foreseeable that such behavior might recur in interactions initiated through the employee’s employment.

Disclaimer

The information provided in this article is for informational and educational purposes only and is not intended to serve as legal advice or as a substitute for legal counsel. While efforts have been made to ensure the accuracy and completeness of the content herein, it is important to note that legal principles and regulations can vary significantly based on jurisdiction and specific circumstances. Therefore, this article should not be used as a definitive legal resource or as a basis for making legal decisions. Readers are strongly advised to consult with a qualified attorney for advice on legal issues or matters, as each individual case may require detailed and personalized legal analysis.

Reliance solely on the information provided in this article without seeking professional advice from an attorney may lead to unintended legal consequences or misinterpretation. The author or publisher of this article do not accept responsibility for any potential errors or omissions, nor will they be responsible for any losses, injuries, or damages arising from its display or use. The information provided here does not create an attorney-client relationship between the reader and the author or publisher.