Pitfalls in Hiring Employees

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One of the most difficult tasks that managers, HR, and business owners face is hiring new employees. According to a survey by the Society for Human Resource Management, the average cost of hiring a new employee is $4,129 and the average time to fill a position is 42 days. This is not a process that you want to do more than you have to (at least for the same position). In addition, employers often hire their problems by not taking the hiring process seriously. Oftentimes companies will hire haphazardly for an ill-defined position. Companies can save themselves a lot of trouble in the future by carefully planning their hiring.

Before Hiring New Employees Assess Your Needs

The first step in hiring a new employee, even if it is to replace a current employee, is to determine what need you are trying to fill. If you do not know what the employee will be expected to do, then neither will the applicant. Moreover, you will not know what the requirements are for the position.

By outlining the duties of the position, a company understands what is expected of any applicant. A good job description includes duties that the employee will perform that are essential but may not be performed on a day to day to basis. This could include climbing a ladder or carrying a certain amount of weight. If you leave this information off, then it may indicate that these are not essential functions of the position. For example, one nurse did not have an ADA claim that could be pursued when she was unable to perform one of the essential functions of her position: lifting up to 100 pounds on occasion. She needed to be able to lift patients on occasion but was restricted from lifting more than 50 pounds for 6 weeks after returning from 12 weeks of FMLA leave. Her employer escaped an ADA claim because she could not fulfill one of the essential functions of her position: being able to lift patients.

Another mistake that managers and others make is that they believe that they know all the job duties and the requirements of the position. They do not talk to any other employees that may have more information. Employees that are already in the same position or anyone that works closely with the position are good resources. They may have guidance on what is actually required for the position, what the new hire will do, and any job requirements that you may not have considered. Companies benefit by involving these employees in the hiring process.

Finally, if you are determining whether you need to hire someone for a new position, then you need to spend even more time carefully considering what you are looking for in the position. Review where employees (or you) are spending your time. Are you doing work outside of your regular duties? For example, if you are a dentist and are spending a lot of time answering the phone, calendaring appointments, and completing office paperwork, then it may be time to get an office manager. If you are hiring your first employee, then it is often a good idea to track your time to figure out how much time you are spending in activities that someone else (a new hire) could do.

Legal Oh-No-No’s

Some quick reminders of what is absolutely illegal in an interview (and elsewhere in the process) and yet still appears every year in news articles, announcements from the Equal Employment Opportunity Commission (EEOC), and Jon Hyman’s annual worst employer of the year nominations.

This is some publicity that you want to avoid:

Refusing to Hire an Applicant Because She is Pregnant

Inc. has a great article on a woman that was fired one week after she started her job because the boss found out she was pregnant. Chris Matyszczyk also posed a great question in the article. “How much training does it take to tell a manager that they can’t fire a woman because she’s pregnant?” Training is an important step to reduce the likelihood of discrimination. The EEOC even offers guidance on training employees and managers.

However, training alone is likely not enough to combat discrimination in the workplace. Culture is often one of the key differences in having an effective team and minimizing harassment and discrimination. David Minze lists five steps on how to improve culture and reduce discrimination at work. He recommends that companies 1) develop values, 2) create a culture of feedback, 3) lead with courage (i.e. do not protect high performers just because they are valuable to the company), 4) build connections (treat employees as humans, which means that you or their manager should ask them how they are doing and genuinely be interested in their well-being), and 5) provide guidance to managers. These are simple steps that all companies can take.

Asking an Applicant Whether She Has Children

The EEOC does not look kindly on this question. Employers that ask this and similar questions get sued because the employer may be (is probably) discriminating based on the applicant’s sex.

Asking Questions About a Candidate’s Race, Religion, Sex or Any Other Protected Characteristic

Don’t refuse to hire people based on these characteristics. That’s just illegal. Well, it is usually illegal. Someone’s religion or sex may be a Bona Fide Occupational Qualification (BFOQ) in certain jobs. For example, a Christian church may require that the pastor it hires be Christian. Another example is hiring only women for jobs that require close contact (e.g. strip searches) with female prisoners. The BFOQ defense is very narrow and many companies have been sued for potentially violating the policy (especially restaurants like Hooters and Twin Peaks).


Hiring is one of the most important issues that companies undertake. Employers that have a plan in the hiring process, seek help from their staff, and avoid major legal issues are generally more successful than those that hire employees without any plan.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.