Remote Hiring Can Lead to Legal Issues - Abel HR

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Remote Hiring Can Lead to Legal Issues

While the outbreak of Covid-19 certainly pushed us to our limits, remote interviews were already a “trend” in HR, particularly for companies that were willing to cast a wide geographical net in order to snag the right person for the job. However, interviewing via video conference may open your business up to certain legal liabilities that are not typically an issue with “traditional” in-person interviews. Read on to find out about these potential pitfalls and determine how you can best protect your business now, and as you navigate the post-pandemic job market. 

Keep it compliant

When you post a job in the remote setting, you want to be sure that you are complying with all federal employment notice requirements. You can do this by including links to the notifications such as the Family and Medical Leave Act, the Fair Labor Standards Act, the Employee Polygraph Protection Act, and the Uniformed Services Employment and Re-employment Rights Act. To do this, add a note with links to the required posters at the bottom of your application. In addition, if you are hiring from further afield, you will want to be cognizant of any state or local laws in the regions in which you plan to recruit that may supersede the federal requirements and include those notices accordingly. Similarly, you’ll want to make sure that your job posting in particular does not run afoul of any state or local laws, such as including compensation figures in a posting in Massachusetts, where sharing such information is considered illegal.

Check your privilege

Being able to hop on a Zoom call not only requires access to the internet, but also requires you to have a quiet, private spot to conduct the interview away from children and other distractions. Prior to Covid-19, this could have meant hopping over to a coffee shop or even securing a spot at the local library, but for many folks, especially those who have kids at home due to the pandemic, this is near impossible. Remember that being able to participate in a remote interview is a privilege and be sure that you are not inadvertently discriminating against those that cannot make time for such a meeting, which could open you up to disparate impact claims. When you offer up the opportunity for an interview, be sure that you provide a few options for the format of the meeting and that you allow some flexibility in timing to allow those with conflicts to participate. Establish the rules: 
When you’re interviewing folks online, you need to be aware of the rules as it pertains to making recordings, and unfortunately this is typically a state-by-state regulation. Further, any rules about recording an interview should go both ways, so that neither you nor the candidate can post it online or otherwise use it for unauthorized purposes. To protect your business from these issues, experts recommend that you consider having candidates sign a non-disclosure agreement prior to the interview and ask the candidate to sign an agreement stating that they won’t record or publish the interview without prior authorization from all involved parties. In addition, your interviewers should be trained in appropriate interview etiquette so that they don’t run afoul of discrimination laws. To ensure compliance, especially in your interviewers who are new to the role, you could consider drafting a framework of “safe” questions that interviewers can (and should!) ask, as well as a short list of “off limit” lines of questioning that they can have on their radar should the conversation veer towards non-safe topics. 

Make it safe

Conducting business online always comes with some degree of cybersecurity risk, but this is particularly true when you’re handling employment applications and other materials that may include an individual’s social security number, banking information, and other sensitive data. To protect your company and your candidate, be sure that the interview itself is conducted using a private network and a secure video or phone conference application. When it comes to completing documents that may include sensitive data, experts recommend using e-signature software, which offers security to protect sensitive information and should only be accessible between the two parties trading the information. Failure to protect your employee’s information — even during the candidate phase — can land you in trouble for negligence unless you can prove that appropriate, good faith efforts were made to secure private information.

Go global

If you are recruiting from even further afield than the United States, once again, you’ll need to be cognizant of employment laws in the country in which you are hiring. Further, you’ll need to pay special attention to how you classify staff from other countries as you may need to establish a place of business in that country first in order to be able to hire an employee and remain compliant with local tax laws. Instead, consider recruiting talent to serve as contractors. As contractors, your employee becomes responsible for paying taxes in accordance with their country and state, as well as covering the cost of their own health insurance (where applicable), pension, and other costs. While you may spend a little more up front, it essentially absolves you from a whole lot of legal responsibility as you become less a boss and more a customer.

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