I.                    Introduction

Employees are, in many respects, the life blood of the business.  A business does not exist, and cannot move forward, without people to advance the operation.  Though we are experiencing an economic downturn, hiring and retention of skilled and loyal workers continues to be at a premium.  Now that we are on the road to recovery, employers will have to consider that meeting our employment needs may become more difficult over time, particularly given the anticipated retirement of baby boomers.  In fact, there are predictions that, over the next ten years, there will be ten million less workers available to meet the job demands we have. Consequently, there will be a heightened focus on recruiting and retaining employees.  How do we make the best hiring decisions in this 21^st Century of employment?  What are the guides that we can follow to make these practices the easiest?

The critical need for sound hiring practices becomes apparent when we look at the end of the employment relationship.  Sometimes the employee decides that greener pastures are elsewhere.  Other times, we, the employer, find that our pasture is not as green with this particular employee – we want to terminate the employment relationship, fire the individual.  Or, the employer determines that the training and disciplining of this person (however one defines that word: training, counseling, or HR write up and follow up) is ultimately more than we bargained for.  This wasn't our intention when we hired the employee.  What could we have done differently in the hiring process to avoid this outcome?  Likewise, if this individual turns out to be a liability for our organization, as in causing the company or business liability headaches, then the employer must look back to the hiring decision and consider what was done, what was looked at (or not), and what should have done.  Are we finding the best person?  If not, what went wrong?  How do we improve the system and reduce our present and future transaction costs?

            Most employment litigation stems from a bad outcome.  The termination, the end of one relationship, is sadly often the beginning of another, defined by a lawsuit.  Winning the case is, in most instances, requires a determination of whether the termination decision was legal.  This is the bread and butter of employment litigation for employment lawyers, but it is the point of dread and disappointment, in many instances, for the employer.  The challenge for most human resource professionals and employment lawyers is to work to turn the paradigm around so that the focus is on hiring; making the right decisions in the beginning.

At the same time that employers, human resource professionals and employment lawyers are struggling with the practical realities of our workforce, we also have to be aware of the EEOC's stance and initiatives in this area.   For example, in March 2006, the EEOC issued its Systemic Task Force Report, expressing its heightened focus on hiring practices related to race and gender issues.  The articulated goal of this new task force is to shatter glass ceilings and minimize biases on a company-wide level, rather than primarily focusing on individual claims of discrimination.  HR professionals were asked to examine closely their recruiting, screening and hiring practices given the new guidelines.

Companies have an obligation to make sure that intentional discrimination as well as long-time practices that subconsciously perpetuate biases are eradicated from the workplace. Common examples of biases can be revealed simply by looking at the names of applicants, when all other qualifications are equal.  EEOC Compliance Manual, April 19, 2006.  In a study conducted at the University of Chicago, researchers found that names more common among white applicants were fifty percent more likely to get an interview than equally impressive resumes submitted by blacks. At the same time, conscious attempts to diversify an organization by giving extra points during screening an individual because they are a minority, for example, may be interpreted as reverse discrimination, absent a showing of prior discrimination.

Another factor influencing hiring practices is the need for employers to protect against potential liability that may result from an employee's harm to other employees or third parties as a result of an employee's bad acts – to prevent the negligent hiring claim. Further, a heightened duty to protect business' patrons may exist, depending on the nature of the business. This potential for negligent hiring claims creates a duty on employers to make informed decisions about applicants; therefore, it is crucial to do appropriate applicant research and uncover the available information and, hopefully, avoid those claims.

            Obviously there are many factors, both legal and practical, influencing hiring and providing for various possible liability claims against employers, if they do the wrong thing in the hiring process.  Even so, if an employer understands the principles shaping these factors, there are basic guides that can be used to facilitate the hiring process and make it successful.  The questions are:  What are the tools that we can use?  What can an employer do and not do?  What can we search and how?  What can we ask?  What should we be ready with when we ask our questions? 

This paper will explore some of the big picture issues related to the hiring process and what employers can/should and cannot and should not do.  First we will look at some of the areas of protection and general concern with those areas, and then we will look at particular hiring strategies and how they can work given what the law requires. 

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