5 Things You Should Ask Before Saying “You’re Hired!”

With the unemployment rate hovering at the 9% mark, it’s an employer’s market with regards to acquiring new talent–at least for those companies that are in a position to hire. But before starting the interviewing process, labor attorney Charles H. Wilson says there are some guidelines you need to know before you say “you’re hired.” According to Wilson, a member of the Labor and Employment Practice Group of Cozen O’Connor, the economy and the prevalence of social media make adhering to labor and employment regulations even more challenging.

To avoid litigation by competitors or employee candidates, Wilson recommends asking the following:

Does the employee have a non-compete, non-disclosure, or non-solicitation agreement? Often, high-level employees or those in an important revenue-generating position will have signed one with their previous employer. “With the scarcity of jobs right now, more and more companies are suing their former employees as well as their new employers for breaching non-compete and non-solicitation agreements,” Wilson says.

The issue for the new employer is to figure out how to hire that employee without it backfiring. “Ask for a copy of the agreement and don’t conclude that it’s going to be unenforceable. Get the opinion of an attorney to determine whether or not it can be upheld,” he advises. If the existing non-compete is enforceable, Wilson suggests figuring out a way to work with it or around it. There may be a way to hire that person in a different geographic region or in a non-revenue generating capacity until the non-compete expires.

Does your company have an effective social networking policy? A lot of companies use social networking sites to find out information about an applicant–whether it be a Facebook or LinkedIn profile. These sites could give you information that you’re legally not allowed to ask in an interview. For example, whether they’re disabled or older. “By looking at that information ahead of time, you may

be getting information you’re not supposed to ask about during an interview,” Wilson cautions. If the potential employee can prove that they were discriminated against based on that information, it could be grounds for litigation. Having an effective social networking policy that focuses on looking at the person’s skill set compared to what the job description requires is going to help, as will a policy telling recruiting managers not to use information from a social networking site as part of their decision for hiring the individual.

Is the position exempt under the Fair Labor Standards Act? The Fair Labor Standards Act is a federal statute that requires employers to pay employees a minimum wage or overtime compensation if they work beyond 40 hours in a workweek unless they are exempt. In which case, the employees still have to make the minimum wage, but they’re not entitled to overtime. A number of employers may classify certain mid-level positions as exempt when they might not be. A lot of times, HR departments will go onto the Department of Labor Website and take the test online but not check with an attorney on whether their conclusion is correct.

Do you know how to rescind an offer of employment based on an arrest record, as opposed to a criminal conviction? While it’s not unlawful to consider an arrest record, the Employment Opportunity Commission (EEOC) takes the position that an arrest record should not be considered because it may have a disparate impact on prospective minority employees. And when it comes to criminal convictions, the EEOC takes the position that you should be careful about considering convictions unless it’s truly job related and there is no disparate impact on minority employees. For example, it might be reasonable not to extend an offer to someone who had a fraud conviction who’s going to be working with money. “But if there’s a person who’s going to

be working with school children and he has an arrest record (but wasn’t convicted) for indecency with a child, that creates a gray area. But as an employer, you want to avoid a negligent hiring or retention claim that could be filed against you because of the employee you hired.”

Your best candidate is mentally disabled, now what? About 1% of the working population is considered to be mentally disabled, according to the EEOC. A mental disability can be something like a diagnosable mental disorder or a significant impairment on a person’s ability to socialize or learn. “Employers have to focus on whether the employee can perform the essential functions of the job,” Wilson says. “Just because the person has an impairment, it doesn’t mean the person should be foreclose from doing a job or being hired from a job. You have to focus more on whether the person can perform the function of the job.”