By UpCounsel Employment Attorney Jessica Passman

Recruiting is integral to the hiring process. Most companies either utilize retained recruitment firms or employ in-house recruiters to find talent to fill open positions.

Today, the recruitment process is mostly virtual. In fact, initial interviews are often conducted via video conference or by other technological means. Employers may not even meet a candidate in person prior to hiring. With that stated, what are the best protocols to follow when vetting a candidate?

Public Versus Private

The internet is considered public domain, which means that anything posted there is for the public including potential employers, to view. Accordingly, searching the internet is an easy and effective way to find out a fair amount about a candidate.

Anything that is not a part of the public domain would be considered private. If you seek information that cannot be found by searching the internet, approval should be sought from the candidate. An application or questionnaire can be used to request information that is otherwise not readily available.

What Can I Ask?

The recruiting process is regulated by federal, state and local laws. For example, the Equal Employment Opportunities Commission and comparable state laws prohibit discriminatory practices specifically regarding recruiting. Therefore, it is best to avoid questions related to race, religion, sexual orientation, pregnancy, etc. Interestingly, while it is permitted to inquire about criminal history, using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964, as amended.

Most states have specific laws on what can or cannot be asked or requested from a candidate. For example, in an effort to close the Gender Pay Gap, Massachusetts recently passed a law that prohibits requesting wage or salary history from a prospective employee (St.2016, c.177). Such Pay Equity Legislation has become quite popular and is being passed in similar form around the country. This will prove an interesting hurdle for recruiters and employers, as salary history often provides a benchmark for salary negotiations.

5 Tips on Keeping It Legal

  1. Utilize the public domain to research candidates. The tools are there, ready to use, and completely legal. Anyone seeking a job, learn what can be found about you by doing a quick search.
  2. Have the candidate sign off on anything that would otherwise be considered private.
  3. If you utilize an application to collect information, include an acknowledgement on how the information being collected will be used and have the candidate sign to confirm his/her understanding.
  4. Stay up to date on federal, state and local laws regarding what kind of information can and cannot be requested.
  5. Establish recruitment policies and good practices to make sure all recruiting efforts are above board.

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The article is not and does not provide legal advice or opinion, nor does it create an attorney-client relationship between the author and the reader.

About the author

Jessica Passman

Jessica Passman

Jessica graduated Cum Laude from the University of Miami School of Law in 2003. Dedicated to providing the highest quality legal representation with a personal touch, and after receiving invaluable law firm experience, she launched her own boutique law firm, offering a unique ability to be agile, innovative and highly responsive, while serving the legal needs of her clients.

In 2010, she became COO & General Counsel of Femfessionals LLC. In this role, she had the responsibility and accountability for the organizational development and overall operation of the company. In being General Counsel and with her past legal experience, she has become very familiar with many areas of the law.

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