The hiring process can be stressful and time-consuming, particularly in a tight labor market where managers are looking to secure top candidates quickly. And while it may be tempting to rush through the steps – or skip certain steps altogether – it’s important to remember that the entire hiring process sets the stage for the employment relationship moving forward. In other words, the cost of overlooking something now could very well multiply down the line.
If you’re considering hiring a worker in your home (such as a caregiver, nanny, or personal assistant), you likely know that you need to write a job description, review candidates’ credentials, and conduct comprehensive interviews to make sure they’re a good fit. While these are all necessary and important parts of hiring, there are other critical steps that should be taken during the hiring process that will not only help ensure you find the best candidate for the position, but also protect you from potential retaliation, discrimination, or harassment allegations.
Although many household hiring managers believe this won’t happen to them – after all, most people would never intentionally harass or discriminate against a candidate – the truth is, these claims aren’t evaluated on the hiring entity’s intentions, but rather on proof of evidence that point to discriminatory practices. Even if there was no ill will behind your actions in the hiring process, a judge is not likely to take your intentions into account when the law is violated. Instead, they evaluate the impact of your practices. The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for investigating claims of discrimination for workers in the U.S., has been paying increased attention to hiring policies that have unintentional discriminatory effects on certain groups of applicants. And in a society where employment law is increasingly complex, any ambiguities in the relationship, terms of employment, or interview process can be interpreted in favor of the employee.
If you want to hire quality private household staff and mitigate potential employment liability, it’s important to know the ways in which a standard hiring process might not go far enough. To decrease your chances of hiring a poor fit – or being hit with a lawsuit – follow these four commonly-overlooked best practices below.
Using different evaluation criteria from one candidate to the next is an easy way to unintentionally make an applicant feel discriminated against. For example, asking all candidates if they are available to work during the pre-determined hours for the role is perfectly fair, but asking only female candidates if they have kids or are in other caregiver-type roles that may interfere with those pre-determined hours could lead to accusations of discrimination against pregnant women, people with kids, or people whose loved ones have disabilities or other special needs.
If you’re asking questions of one candidate but not holding other candidates to the same standard, it could result in a candidate assuming that something about them – for example, their gender, age, or race – is casting their skills and experience in an unfairly critical light. In fact, many states and cities are codifying this by making certain types of questions illegal to ask during the interview process, which can create further confusion for household employers acting in good faith during the hiring process.
For this reason, it’s important to keep the conversations on track by referencing carefully crafted and well-thought out questions that you prepared in advance of the interview. As a best practice, first consider what you’re intending to uncover with your questions and how the questions may be perceived by applicants of different backgrounds. Spending a few minutes putting together an objective rubric and key interview questions before meeting with your candidates will ensure that both you and the applicant will have a clear understanding of what is expected, and may head off any misunderstandings down the line.
Checking references might seem like an unnecessary step when you’re trying to hire quickly and trust what the candidate has to say. However, conducting thorough reference checks can be the difference between hiring your dream employee… or facing a nightmare situation down the line.
When checking a candidate’s references, a good rule of thumb is to contact three references from the past five years. They should not all be from the same job, and at least one of them should be a former manager or supervisor of the candidate.
When you check a reference, you’ll want to ask pointed questions of the person you’re speaking with, such as:
If you ask a question that causes the reference to pause, sound rehearsed, or come across as unnatural when answering, that’s a good sign to press further – you may uncover a red flag that would have otherwise been missed.
Reference checking may feel unnecessary in addition to conducting a thorough background check, but doing so with a critical eye can help avoid liability in the future. For example, let’s say your employee Bob was harassed by your employee Mike at work. If Mike had a history of harassing coworkers at prior jobs, and Bob finds out that you didn’t do your due diligence to uncover that history before hiring Mike, then Bob has a strong case for employer negligence – even years after you hire Mike.
Disclosing that you’re not choosing to move forward with a candidate is an instance where a little communication can go a long way. As soon as you know you won’t hire someone, let them know promptly and professionally. This can be as simple as sending an email stating something along the lines of, “Thank you for your application. We’ve chosen to proceed with another candidate who is a better fit for the requirements of the position.”
It is not required to provide feedback on why a candidate didn’t get a position, and in fact, doing so can often open you up to liability in the event you say something well-intentioned that the candidate interprets otherwise. For example, you could say that an applicant’s technical skills simply aren’t up to the caliber required for the position, but the applicant could hear that their age, gender, or other demographic factors are influencing your opinion of their technical skills.
Job candidates who feel slighted or like they should be given a second chance are often angry, and angry people are usually the ones who file lawsuits. Letting people know right away that you’re not considering their application anymore frees them to move on, and can stop any potential resentment from building up as the candidate wonders whether or not they’ll be selected.
If a valid hiring-related lawsuit isn’t about information that was legally off-limits for the employer to consider in the hiring process (such as race or age), then it’s almost certainly related to promises made that weren’t kept. An employee who is told they’ll work at a certain rate or in a particular location – and then has the terms of employment changed on them after accepting your offer – is well within their rights to escalate their concern.
Make sure all offers are made in writing and that candidate understands the terms of employment. If someone accepts your job offer and takes action based on that offer (such as relocating to another city or quitting their current job), and you decide to pull back the offer or substantially change the terms of their new job, the risks are significantly elevated. You could be on the hook for a hefty settlement, even if the decision to change employment terms was based on unforeseen circumstances.
If the needs of your household change between when they accept the job offer and when they start, be sure to check in with an employment lawyer to understand what can be done to avoid a lawsuit.
It is far too easy to overlook the minutiae of the hiring process when you’re eager to secure a stellar private household employee. Unfortunately, doing so can result in real financial and reputational risk.
Make sure to use a standardized rubric to interview and evaluate all applicants, check candidates’ references thoroughly, promptly communicate with rejected applicants, and keep your promises (in writing) to ensure everyone involved in the recruiting process has a positive experience and isn’t left seeking recourse elsewhere.
If you’re looking for support in hiring and managing private household employees, contact TEAM to learn more about how we protect our clients from liability and ensure that they – and their employees – get the care and services they deserve.