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SGV Tribune

How to avoiding the legal pitfalls of online recruiting

One bad hire can mean more expenses for a business, and in some cases, in excess of $200,000 before an employee is ultimately terminated.

The COVID-19 pandemic has forced businesses to change their recruitment and hiring practices.

While the Internet had already shifted the way people look for, apply to and fill jobs, small businesses will now, more than ever, need to rely on virtual recruiting to competitively attract new talent.

Finding qualified employees can be expensive and time consuming for small businesses. With one bad hire, however, businesses can incur even more expenses. In fact, by some estimates, it can cost a business in excess of $200,000 before an employee is ultimately terminated.

Professional social media websites like LinkedIn have made it easy for employers to learn about a potential employee’s skills and endorsements prior to an interview. At the same time, job boards and search engines like Indeed, Glassdoor, Careerbuilder and ZipRecruiter have made it easier for employees to search and apply for jobs online.

Recruitment is now at an employer’s fingertips, but small businesses should be aware of, and avoid, the potential legal pitfalls that come with posting a position or application online.

For starters, job postings should never reference age, race, color, religion, marital status, gender, national origin, sexual orientation, medical conditions, mental or physical disabilities, genetic characteristics or military and veteran status. Under the California Fair Employment and Housing Act, an employer is prohibited from discriminating against job applicants based on the above criteria.

Even seemingly innocent questions can indirectly disclose protected information. For example, a question about when an applicant graduated from high school might disclose the applicant’s age.

Second, an online job application cannot inquire into a prospective employee’s criminal history. Under Assembly Bill 1008, employers with more than five employees cannot ask applicants about their conviction history until an applicant receives a conditional offer.

Additionally, hiring employers also cannot ask about a prospective employee’s salary history. While an employer can ask what salary an applicant expects to receive, they are prohibited from obtaining an applicant’s salary history and using it as a basis to offer or deny a position.

Avoiding these legal pitfalls will help small businesses comply with California’s strict employment laws.

The Internet is a great tool to connect potential employees with small business owners, but it is not a substitute for an in-person, telephone or video conference interview. Small business owners must still exercise due diligence in online recruiting by checking an applicant’s credentials and references as well as questioning whether the candidate’s attitude matches the culture of the business.

If you make sure a candidate is a right fit for your business upfront, it will save you from numerous headaches related to replacement and lost productivity down the road.

Damian Northcutt, a litigator in Best Best & Krieger LLP’s Business practice group, works with private companies, public entities and health care providers to litigate and find early resolutions to challenging business disputes and complex civil matters. He can be reached at damian.northcutt@bbklaw.com.