Most restaurant owners say that finding and retaining a qualified, service oriented staff are their most difficult tasks. The law is very specific about what an employer can and cannot do to secure a workforce. Before employees can be selected, managers must understand what the essential functions are for each job position (i.e. job description). From there, managers can identify what qualifications candidates will need to perform the job. These qualifications should be in writing in all job advertisements. The object of this game is to protect yourself because hiring and maintaining employees is legally tricky.
Job qualifications can include physical and mental requirements but cannot include characteristics that would unfairly prevent a class of workers from successfully competing for a position. For example, requiring that your dishwasher be six feet tall would be inappropriate because women and certain minority groups might have difficulty meeting it. All job qualifications must be “bonafide occupational qualifications” (BFOQ) which in the absence of, an employee would be unable to safely or adequately do that which was necessary of him/her to perform their job description.
Your employment application can request boilerplate information such as their name, address, experience and related information, but all questions should focus exclusively on job qualifications and nothing else. When conducting interviews, keep in mind that what you can ask is very limited and if a candidate is not hired because of an answer to – or refusal to answer – an inappropriate questions, a lawsuit may be filed. Generally, age is considered irrelevant in most hiring decisions because the Age Discrimination in Employment Act protects employee 40 years old and older. When age is a factor, such as when a position calls for the service of alcohol, then age can be requested.
Questions about race, religion, and national origin are inappropriate, as is requiring that photographs be submitted with applications. Questions about education background have been deemed inappropriate if the job description does not require any specific educational background. Questions about home ownership potentially discriminates against those who do not own homes, and questions about military discharge are have been deemed improper because a high proportion of other-than-honorable discharges are given to minorities.
Increasingly, managers use background checks before hiring employees but background checks can lead to litigation if the information secured is false or used in a way that violates employment law, or if the information is improperly disclosed to third-parties. Conversely, the failure to conduct a background check for some positions can subject an employer to liability for negligent hiring. Always obtain written permission from each candidate before conducting a background check.
If references are provided, you may call each reference but nowadays, past employers will rarely divulge information as many employers have been sued for providing false or inappropriate comments about past employees. Simply ask whether the company would rehire that worker and you may find the answer to be sufficiently telling. For more information on the legal do’s and don’ts of employee hiring, click here.
James DiPasquale, Attorney
DiPasquale Law Group