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Hiring Selection Process Lawyers

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What Can Employers Do to Ensure Fair Hiring Practices?

Employee hiring procedures are governed by numerous statutes to protect against discrimination and unfair practices. To ensure compliance with all federal and state regulations, employers should establish an appropriate, standardized Selection Procedure to be followed every time an employee is hired.

What Is a Selection Procedure?

A selection procedure can be any measure, combination of measures, or procedures used as a basis for employment decisions. Examples of typical selection procedures include:

  • Written tests
  • Performance tests
  • Training programs
  • Probationary periods
  • Informal and casual interviews
  • Un-scored application forms
  • Physical, educational and work experience requirements

The selection procedure cannot disproportionately exclude or discriminate against protected classes unless for job related and business necessity reasons as governed by the exception of Bona Fide Occupational Qualifications (BFOQ). However, as long as there is no substantial disproportionate impact on protected groups then an employer can use any valid selection procedure.

What Is a Valid Selection Procedure?

When using an actual test to measure an applicant's capabilities, the test must have some correlation to the work required in the position. To evaluate the validity of a selection test, the test is analyzed by three factors:

  • Content: whether there is a direct relationship between the contents of the test and the job
  • Construct: whether the test appropriately evaluates abstract qualities that are important for the job
  • Criterion: whether performance on the test adequately correlates to actual job performance

Can Subjective Criteria Ever Be Used?

A subjective criterion is is often the basis for discriminatory challenges but they are not discriminatory per se. To use subjective criteria, an employer's best practice would be to make it:

  • Clear, specific and honest
  • Documented
  • Applicable

Can an Employer Ask for a Drug Test?

It is legal for employers to ask prospective employees to take a drug test, although such drug tests are not mandatory. Likewise, job applicants may decline to take such a test, although refusing to do so may affect the application.

However, if an employer does administer drug tests, the employer must do so equally and not because of race, gender, nationality, disability or religion.

Can an Employer Call an Applicant’s Former Employers?

Yes and such reference checks can be common practice. However, the calls can only be about work performance. Personal information about the applicant cannot be asked or given by either employer. Employers cannot lie about further employees. Remember that former employers have the right to disclose why their former employees left their previous job.

Can an Employer Ask for Personal Information Like Credit Card Numbers?

No, the employer cannot ask for personal information or about personal topics. If the applicant brings up a personal topic though, some leeway is given. However, asking for personal information, such as numbers or passwords, can be illegal depending on the state and the agreements made with companies such as Facebook. 

Do I Need an Employment Attorney?

As an employer, if you are facing a challenge to your hiring policies, it is highly recommended that you consult an experienced employment attorney to ensure that you are complying with all federal and state regulations. If you believe you were subjected to an unfair hiring process, consulting an experienced labor law attorney can help determine what actions you can take to file a claim.

Photo of page author Peter Clarke

, LegalMatch Content Manager

Last Modified: 12-18-2014 12:19 PM PST

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