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Minimizing Liability Risks in the Hiring Process – Part 1

This post is part of a new series that specifically discusses employment law issues for startups and small businesses operating in New York State and New York City.

The hiring process is fraught with liability risks for the unassuming employer.  Certain inquiries and requirements are flat out no-no’s.  With protections increasing for job applicants, it’s more critical than ever for employers to approach the hiring process with caution.

In Part 1 of this post, we’ll discuss how to minimize liability risks in job advertisements and employment applications.  In Part 2 of this post, we’ll discuss interview questions and background checks.

Job Advertisements

When crafting job postings and advertisements, special care must be taken not to discriminate – directly or indirectly – against any individuals with “protected characteristics.”  (Protected characteristics are defined by applicable federal, state and local laws.  For example, under New York State law, employers with four or more employees are prohibited from discriminating against individuals on the basis of age, creed, race, color, sex, sexual orientation, national origin, marital status, gender identity or expression, domestic violence victim status, disability, pregnancy-related condition, military status, favorably resolved arrest record, conviction record, predisposing genetic characteristics, and familial status.)

As far as job postings and advertisements are concerned, this means that an employer cannot set a preference for individuals with certain protected characteristics (which would discourage those with other characteristics from applying).  For example, an ad that seeks “females” or “recent college graduates” may discourage men and people over 40 from applying and would violate the law.

NYC employers are specifically prohibited from publishing job advertisements that require applicants to be currently employed.

Applications for Employment

As with job advertisements, employers should not seek any information from an applicant that would reveal a protected characteristic.  For example, do not seek:

  • Birth dates
  • Graduation dates – School graduation date can reveal an applicant’s age. To obtain information on whether an applicant holds a degree or a diploma, simply ask the applicant what degree(s) the applicant has obtained.
  • Race, color, or national origin
  • Citizenship – Inquiries about an individual’s citizenship or country of birth are prohibited. Instead, inquire if an applicant is legally eligible to work in the United States.
  • Maiden name, Miss, Mrs. and Ms., all of which can reveal marital status
  • Information about injuries, illnesses or disabilities (including whether the applicant filed for or received workers’ compensation or disability benefits) – Inquiries about an applicant’s injuries, illnesses and disabilities are prohibited. Instead ask an applicant whether they are able to perform specific functions of the job, such as lifting items of a certain weight.

Under New York law, employers cannot require applicants to disclose: (1) previous arrests or accusations that are not still pending and which did not result in convictions or guilty pleas, (2) youthful offender adjudications, or (3) sealed conviction records.  However, an application for employment may contain questions about (1) convictions and (2) arrests for charges that remain pending when the application is completed.

The law in NYC is more limited when it comes to inquiring about criminal history on a job application.  In NYC, employers generally may not inquire into an applicant’s criminal history at any point during the initial stage of the employment application process (such as job application or interview) before making a conditional offer of employment.

NYC law also prohibits employers from inquiring into an applicant’s salary history during any stage of the employment application or hiring process.

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