Auditing Your Hiring Process for Legal Compliance

State and federal laws impose many restrictions on hiring practices for employers. Some of these restrictions are intuitive. For example, every HR professional knows that civil rights laws prohibit racial discrimination in hiring.

However, statutes, regulations, and case law are constantly evolving to cover new areas and hiring practices. By conducting periodic audits, employers can square your practices with current legal requirements for hiring and recruitment.

This kind of proactive employment law and HR compliance can significantly reduce your risk of intentional or inadvertent violations that trigger lawsuits from employees and regulatory actions.

Hiring and Recruitment Process Audits

Hiring process audits can take many forms. Some audits measure the effectiveness of your recruiting efforts, while others assess your return on investment.

Here, we’ll explore audits that examine legal compliance. The goal of these audits is to verify that all recruiting and hiring practices comply with state and federal laws. A legal compliance audit can identify risky practices that expose your company to lawsuits and enforcement actions, even if they have not yet produced any complaints.

For example, the Americans with Disabilities Act (ADA) requires you to provide reasonable accommodations to applicants with disabilities during the application and interview processes. Your company might have avoided ADA complaints simply because you have not received any accommodation requests.

An audit can determine whether you can properly handle an accommodation request for your hiring process in the event that you receive one.

Steps for Performing a Hiring Practices Audit

Since every company has different hiring needs and policies, your hiring practice audit will be unique. Thus, you should contact your in-house or outside counsel to prepare for your employment law compliance audit. The following general steps can help you outline your audit plan.

Learn Best Practices for Employment Law with Compliance Recruiting and Hiring

Every employer wants close control over recruiting and hiring. Job posts and interviews set the stage by selling your company’s unique characteristics. A good post can make your business stand out from your competitors, giving you the chance to grab the best talent.

However, some processes are identified as “best practices” for a reason. By following these practices, you can learn from other companies’ mistakes and benefit from their perspectives.

Most importantly, you can learn about aspects of recruiting and hiring that you might not be familiar with, including uncommon legal issues that have tripped up other companies.

For example, creative job postings can draw in more applicants. However, these postings must still follow best practices by avoiding any language that might be interpreted as explicitly or implicitly excluding people from applying based on their race, disability, national origin, native language, religion, gender, gender expression, or in California, political activities.

In addition to reading about best practices from other HR professionals, ask your employment attorneys for their suggestions. Make sure to discuss any potentially difficult stipulations. For example, if a position requires the employee to meet certain physical requirements, verify with a lawyer how you can articulate this without violating the ADA.

Identify Your Recruiting and Compliant Hiring Practices

The next step is to identify your recruiting and hiring practices. Do not focus solely on the policies that your recruiters are supposed to follow. Look at the actual processes your company uses for the following:

• Writing and approving job posts
• Reviewing resumes and applications
• Selecting candidates for interviews
• Scheduling and conducting interviews
• Choosing candidates to hire
• Identifying the conditions of employment, including the pay offered
• Making job offers and reviewing job descriptions
• Onboarding new hires

Each of these steps may also include substeps. For example, your company might regularly conduct background checks and drug tests after making a job offer.

Understand your policies and practices for each of these steps. Moreover, learn how these policies and practices are enforced.

For example, suppose that your company policy is to disregard an applicant’s name and gender during the initial screening process. Determine how this information is concealed and find out whether there are any ways for recruiters or hiring managers to access it and, potentially, make discriminatory decisions.

Screen Your Practices for Potential Issues and Recruitment Laws

Compare your recruiting and hiring practices to both company policy and legal best practices. If your company deviates from either of these, try to find the reason for the difference and its impact on your hiring. Based on this analysis, you can determine whether your company is currently violating the law or faces a risk of noncompliance.

As one example, some positions may require a high level of English fluency. However, eliminating candidates solely because they are non-native English speakers is not typically legal. If your company has only hired native English speakers, identify the reason and determine whether it is discriminatory.

At this point, you may need to involve your employment defense law firm, if you have not already brought legal support into your audit. As you flag potential issues, you can run them past your lawyers for employment law compliance.

This is often an iterative process where you will run an issue past outside counsel, who will send you back to gather more information for analysis.

Discuss Possible Fixes With Your Employment Law Attorneys

The final step of your audit is to bring all practices into compliance with state and federal laws. Employment law compliance will likely require input from a business employment lawyer. Before fixing any concerns, discuss them with the legal team to ensure that the new practice will comply with the law.

Importantly, you should think outside the box to create policies for situations your company has not yet encountered. This step will help you maintain employment law compliance when the unexpected occurs.

For example, suppose that your company has never had a pregnant candidate apply for a job that is physically demanding. Review the California Family Rights Act with your lawyers and determine how you would handle this situation.

Auditing Employment Law Compliance in Recruiting and Hiring

Noncompliance in recruiting and hiring can expose your employer to lawsuits and enforcement actions. These disputes can, in turn, lead to both financial and reputational harm. By auditing your recruiting and hiring practices, you can avoid potential issues and protect your company from complaints.