I want to start with my client’s story from this weekend, because it’s the impetus for revisiting this topic. They hired a manager and had paused her onboarding to check her references. Unfortunately, when they checked, they could not verify any of the work experience she had cited. Indeed, not only could they not verify that this manager worked at the places she listed – they could not determine that any of those establishments ever existed. Consequently, they rescinded her offer and paid her for the limited time she had spent completing the onboarding process.
This story should not shock you – we regularly encounter employees with false credentials, including education, work history, even military experience. We routinely see them in the employees who become our plaintiffs in lawsuits. The key is to uncover these fraudsters before they come aboard as part of your workforce.
Good hiring practices go a long way to defeating lawsuits, because we screen out the troublemakers before they even start. But good hiring starts before you make the offer. So let’s drill down on this again.
Start with good recruiting efforts. Finding candidates varies wildly depending on location and industry. For example, law firms in Los Angeles often use recruiters, even for staff positions. But even outside of Los Angeles, that practice changes. I would go with what has worked for you, and referrals from GOOD existing employees can work well. Be careful, however, I have seen this practice backfire when whole families wind up running a kitchen or department. Think about where you are getting your best hires and double down on that.
But even before you advertise for that new opening, make sure you carefully define the role you are seeking to fill. Often, when my clients are struggling with a new hire, it’s because they tried to fill the wrong position. This may be easier if you are hiring another host for a well-established restaurant. But hiring a manager in that same restaurant, or a person in accounting, may be trickier. And if you have a position to fill, stick with that task. Too often, we start straying from that goal because a candidate has restrictions. Of course, there may be legal reasons to accommodate an applicant’s limitations. State and federal law require that we accommodate for an employee’s disability or religion. But if you are looking for an opening prep cook and this candidate tells you they are just not a morning person, keep looking.
Once you have that role defined, carefully craft your job posting. Specify what the role requires – in experience, skill set, and physical demands. The best basis for a good job posting is a comprehensive and accurate job description. Do you all have these? Job descriptions are essential in many contexts, but hiring is a crucial one.
And don’t forget to post the salary range, which is required in California! And take this opportunity to review the compensation for the role and whether the employee is appropriately deemed exempt or not-exempt based on their daily duties. I often have clients send me job descriptions or job postings for another opinion on this issue. Reclassifying someone later is messy, so getting it right at the start is key.
Get a job application. I know, people have resumes. They complete some online form with Indeed or whatever. I don’t care – still have them complete YOURS. Your application will ask the proper questions and omit the unlawful ones. It should ask about gaps in employment. It will ask if they can work busy weekends if that is what you need. It won’t ask about criminal convictions or other prohibited questions. It should ask about someone’s physical ability to perform the job functions. Ideally, you would attach the job description here, or at least a truncated list of job requirements. How else can they adequately answer this question?
Now here is the important part – make sure they answer ALL the questions on the job application. They should not say “see resume.” They should not skip questions. Take the time to READ and go over this application. Look for the red flags. How often have they switched jobs? Is there a gap they are not disclosing? Maybe they took time to hike the Andes, or they took off for family reasons. Fine. But maybe they are covering for a short-term job they do not want to disclose.
And if they have given you a resume, check it against the application. I can’t tell you how often they are different.
Finally, your application should require a signature warranting that everything is true and explain the consequences if false information is provided. I also cannot tell you how often problem employees lie on their job applications. Almost all the time. Like I said at the start, THIS is your opportunity to catch that.
If you need a sample job application, we have those.
Interview with time and care. Interviewing is a skill. We have many talented and valued employees who will NOT be your best interviewers. Find people who are patient, thorough, and can listen. Your department heads and busy managers may not be the best ones. They are often the ones desperate to fill a role. They don’t always pick the best employees. But we need their input because they know what the job requires. It often makes sense to have more than one person interview.
Ask the right questions and not the wrong ones. By law, employers cannot ask questions that reveal protected information, such as someone’s marital status, religion, past work-related injuries, or national origin. Job applicants can bring discrimination actions just as current employees. Consequently, you cannot ask if someone is married with kids, but you can ask if they will have trouble making it in to work at certain hours. You cannot ask if someone is pregnant or may have kids soon. However, you can ask if they would be available to run your big marketing event in three months. You cannot ask about religion, but you can ask if the person can work certain hours and days, even holidays (especially in hospitality or retail). I have done previous articles and conduct manager training classes on how to interview. Let me know if you need more information on this topic.
Hire for the position you really want, as I also said above. Too often, I find employers hire someone who isn’t quite right, but well, we liked them in the interview. It may well be that you are hiring for one position and in the process, find someone you like for another. That’s fine. Hiring for talent can work. But don’t hire the wrong person for the role you still need to fill. Pushing a square peg into a round hole rarely if ever works.
As I have also addressed in past Briefings, be very careful about “working interviews.” You would need to pay anyone performing job duties, at least minimum wage, and you would need to pay them on the spot. And if they get hurt, yes, it’s a work comp injury. If they are not properly paid or fail to get appropriate breaks, they are your next class rep who probably didn’t sign the arbitration clause yet. Be careful with this process. If you do pay for working interviews, pay them immediately – lest you decide later not to hire them. They probably have not yet signed your onboarding materials or your arbitration agreement. You don’t want them to be your next class action rep.
Check references! This is why I am revisiting this topic.I know – most employers listen to me these days and only provide job neutral information. But even getting that information allows you to check where and when they worked. And as you can see from my client’s story – people create false backgrounds. They use ChatGPT now to do that. Remember what I said – many of our problem employees have lied on their applications about basic facts. This is where you catch that. Some employees have even lied about where they attended school or where they lived. Check. Check it all. Don’t hire liars.
Should you do a background check? I have had a few of you reach out to me on this issue recently, so it is also worth the revisit. Some of you are required by law to run background checks for certain positions. It’s also standard for certain industries or positions. Just know that there are intricate rules surrounding the disclosures needed to run a background check and the written protocols involved if you determine to rescind an offer. Also remember that many states, including California, have “ban the box” laws that prohibit you from automatically excluding anyone with a criminal history, and other laws that forbid you from using bankruptcy or prior work comp claims in your hiring decisions. But background checks may be another way of getting that information about education and work history. Just remember – if you conduct background checks for certain roles, you must do that consistently. I have addressed these issues in prior articles as well but reach out if you need more information on this topic.
What about other pre-employment tests? Some employers are required to conduct drug tests, and others regularly conduct physical exams. This is a highly regulated area, and if you are considering initiating these practices, reach out for help.
Some of you have asked me about pre-employment screenings or personality tests. I also have had a few of you ask about this possibility lately, and there are many more new companies touting AI enhanced testing procedures.For those of you old like me, you may recall that personality tests were hailed decades ago as the miracle to finding that perfect employee. Like everything else, there is no magic wand for this process, and personality tests are also fraught with legal challenge. Also, keep in mind that California and other states have already enacted legislation to curb the use of AI as a screening tool, so step carefully here. I also am very skeptical about their effectiveness. If you have questions about any of this, again, let me know.
The use of staffing companies, temp status, and “probationary periods.” I had a client recently say to me “I know you hate probationary periods.” At least they are paying attention.
I did a very stern article last year, cautioning employers to strike the use of “probationary or introductory periods.” I won’t even go into all the reasons again here, but if you missed that article, please find it. Here is the upshot – leased employees, temp employees, probationary employees, are ALL still your employees. Remember, that job applicant on the working interview can still sue you, for even a few hours of work. So can ALL these workers, whatever label you give them. All that means we need to ensure that all new employees, whatever their label, have been properly onboarded, signed the arbitration agreement and your handbook, are given appropriate breaks and pay, and are heard if they make claims of discrimination or harassment.
But hopefully, we will all be making better hiring decisions and we will have fewer problems with all these “new employees.” And if you need any help on any of the above, you know where to find me. Let’s face it – many of you found me in Africa.
