PCS Weekly - HR Topic
Hiring & Onboarding
Navigating the hiring process and onboarding new employees effectively is key. See tips and legal guidance on getting it right below.
Question: How do we know when an employee is ready for a leadership role?
Answer from Kyle, PHR:
It’s good you’re thinking about this. Promotions into leadership too often come with little discussion about how the leadership role will be different from the current role or whether the employee has the interest or skill set to be an effective leader.
Fortunately, there are indicators that someone is likely ready for a leadership role. These include (among other traits) their ability to communicate effectively, inspire and motivate others, resolve conflicts while minimizing drama, adapt to change, and take accountability for the work of their team.
If there’s an employee you’d like to promote, but they haven’t expressed an interest in a leadership role, schedule a meeting with them to talk about the idea. Share why you feel they are ready for the role and what it means to be a leader within your organization. Ask about their career goals and how they would like to advance within the organization. Let the employee know how you can support them with these goals, whether or not they move into a leadership track.
If the employee is interested in leadership, provide them a clear picture of the responsibilities and the training and guidance they’ll receive as they move into the new role. Most employees who are new to leadership will need extra support as they transition into a position of greater responsibility.
This Q&A does not constitute legal advice and does not address state or local law.
Question: What is the difference between a job description and a job posting? Can I just share the job description when advertising for a role?
Answer from Brody, PHR, SHRM-CP:
If possible, we recommend meeting with employees to inform them that, going forward, these policies will be uniformly enforced. If meetings aren’t a viable option, a company-wide announcement is the next best option. Regardless of how you initially communicate the change, you may want to provide a couple of reminders in the first few weeks after the change—old habits can be hard to break. Make sure you document when and how this change in policy enforcement is communicated to employees. If appropriate for your workforce, you could couple the new enforcement with fun incentives for employees and teams that arrive to work on time or otherwise successfully follow your policies.
Company-provided lunches, for example, are a popular reward and likely to motivate punctuality and appropriate attire. If employees continue to be late or dress inappropriately, you can and should discipline them in accordance with your policy. But do keep in mind that with dress codes and attendance policies, you may need to provide reasonable accommodations when required by law.
This Q&A does not constitute legal advice and does not address state or local law.
Question: We have a repeat applicant whom we offered a job to in the past. This candidate failed a drug screen back then, so we rescinded the offer. Can we reject them now based on their past drug screen result?
Answer from Kyle, PHR:
Answer from Kyle, PHR:No, chances are that rejecting an applicant based on a previous drug screen will violate the Americans with Disabilities Act (ADA). The ADA prohibits employment discrimination on the basis of a disability, which includes being in recovery from substance use disorders. The ADA applies to employers with 15 or more employees, although state laws also prohibit disability discrimination in employment, and many of those laws apply at a lower employee count.Even if you aren’t subject to the ADA or a state disability discrimination law, we don’t recommend excluding someone from your selection process based on their past failure of a drug screen or other pre-employment screening.
Many things could have changed since the last time this candidate was in your selection process, including your own drug screening process, the candidate’s personal habits, or even which drugs are legal under the law in your state. By excluding them from consideration, you could be missing out on a great candidate.
This Q&A does not constitute legal advice and does not address state or local law
Question: We are hosting an event and would like to allow our employees to bring a guest. Should we put limits on who they can invite (e.g., their spouse)?
Answer from Kyle, PHR:
The decision is up to you, but we don’t generally recommend limiting who can be a “plus one.” Not everyone has a spouse or significant other, so allowing employees to bring whomever they want is more inclusive and inviting. They’re more likely to attend and have a good time. Not placing limits on who can be a plus one also saves you from having to define terms like “significant other” or “partner” and determining whether certain guests qualify.That said, depending on the type of event, it could be reasonable to limit guests to those who are at least 18 or 21 years old.If you opt to restrict who can be a guest, inform employees ahead of time and be prepared to explain your reasoning.
This Q&A does not constitute legal advice and does not address state or local law.
Question: Do we have to get permission to run a background check?
Answer from HR:
You certainly do! The Fair Credit Reporting Act (FCRA) requires you to get permission from an applicant or employee before conducting a background check. It also has specific notice requirements, such as providing the applicant or employee a summary of their FCRA rights and the appropriate adverse action letters if you decide not to hire them or terminate their employment because of the background check.
A number of state laws also have background check requirements.
Legal requirements aside, telling applicants what to expect as part of the selection process is considered a professional courtesy, especially if you’ll conduct background checks or any other kind of screening that digs into history that may not be directly related to the work they will be doing.
You can learn more about background checks, including legal requirements, on the platform.
This Q&A does not constitute legal advice and does not address state or local law.
Question: What should we include in a job description?
Answer from HR: Answer from Sergio, SHRM-CP
November 2024
Accurate and carefully crafted job descriptions are essential for attracting and keeping new employees, setting clear performance expectations, and serving as a critical line of defense in many types of employment litigation.Effective job descriptions include:✓Job title: Create a title that accurately reflects the position. Avoid cutesy terms like “ninja” or “guru.” If applicable, use the title to indicate where the position fits in a career ladder (e.g., aseniormanager).✓ Exemption status: Indicate whether the role is exempt from minimum wage and/or overtime.✓ Position summary: Provide a brief, high-level overview of the position’s purpose and duties. It should be clear and concise.✓ Essential functions: List the 3–5 most critical responsibilities and tasks, starting with the most important task or the one to which the employee will devote the largest share of their time.Qualifications: Identify the knowledge, skills, abilities, and other characteristics that an individual must have to perform the job duties.✓ Supervision: Indicate how this position is supervised or to whom the person in this position will report. Work environment:Give an idea of the nature of the location (e.g., remote or corporate) and working conditions. Be sure to include any physical requirements of the job, noise levels, and/or temperature.
This Q&A does not constitute legal advice and does not address state or local law.
Question: We’ve identified the job candidates we’d like to interview, but we still have applications coming in. Do we need to review every application before moving forward with interviews and making a job offer?
Answer from Jenny, PHR:
This situation should be handled the same way you’d manage most work disruptions affecting an employee’s performance. Start by having a conversation with the employee about the disruption and explaining your concerns and performance expectations. Remind them that it’s their responsibility to maintain a working environment where they can be successful.
Feel free to brainstorm solutions with them—like a different room for their workstation or creating a house rule that calls for quiet during work hours—but it’s ultimately on the employee to make whatever changes are necessary. If things don’t improve, follow your standard process for managing performance. You can learn more about performance management on the platform.
This Q&A does not constitute legal advice and does not address state or local law.
Question: A Candidate Told Us They Have a Disability. What Do We Need to Do?
Answer from Kyle, PHR:
We recommend asking if they need an accommodation during the application process, but above all, ensure that having this information doesn’t influence your hiring decision. The Americans with Disabilities Act (ADA) requires employers to provide accommodations to applicants with disabilities if needed to be considered for a job unless the accommodation causes an undue hardship. If the applicant doesn’t need an accommodation, simply continue to focus on the candidate’s skills and abilities relative to the position you’re hiring for.
As you’re likely aware, employers are prohibited from asking about disabilities before offering an applicant the job. As a best practice, you should be asking all candidates—not just those who disclose a disability or appear to have a disability—whether they can perform the essential functions of the job with or without a reasonable accommodation. This can be as simple as adding a question to your job application.
It’s important to not make assumptions about a candidate’s ability to perform their job based on their disability. If a candidate, during the post-offer stage, requests an accommodation to perform the essential functions of their job, then you would engage in the interactive process with them to determine what accommodations may be effective.
This Q&A does not constitute legal advice and does not address state or local law.
Question: What do we do if we find a discrepancy in a background check?
Answer from HR
It depends on the seriousness of the discrepancy, whether the information is pertinent to the job itself, and whether the candidate would be ineligible for the position. You probably don’t need to make an issue of a minor variance like a candidate telling you they started a job in the month of April, but their background check saying they began in May. However, a major difference, such as the candidate apparently not having a college degree they claimed to have or a criminal history they didn’t disclose, likely warrants further review.
If you see a discrepancy, give the candidate an opportunity to explain. If you’re satisfied with their explanation and everything else is fine, you can proceed with the hiring process. If it turns out the candidate isn’t qualified for the job, wouldn’t be permitted to hold the position, or deliberately lied, you can withdraw the offer of employment.
If you end up withdrawing the offer, you will need to follow the requirements of the Fair Credit Reporting Act (FCRA) and any applicable state or local law regarding background checks. Among other things, the FCRA requires you to provide the candidate with a notice that includes a copy of the background check report you used, as well as a notice titled
A Summary of Your Rights Under the Fair Credit Reporting Act. Applicants, candidates, and employees have a legal right to dispute incomplete or inaccurate information.
You can find more information about background checks and the FCRA on the platform.
This Q&A does not constitute legal advice and does not address state or local law.
Question: Does the National Labor Relations Act apply to my business if we don’t have a union?
Answer from Kyle, PHR:
It does! Congress enacted the National Labor Relations Act (NLRA) in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to limit certain labor and management practices that can harm the general welfare of workers, businesses, and the U.S. economy. Although a good portion of the NLRA deals with unionization, Section 7 of the act provides protections for all nonsupervisory employees, even those not involved with a union.
Specifically, Section 7 defines and protects concerted activity by employees. Concerted activity happens when employees act as a group (i.e., in concert) for their mutual aid or protection. That said, it’s easy for an individual employee to gain protection under the NLRA if they’re discussing the terms and conditions of their employment either physically around coworkers or in the same virtual space (e.g., on social media). The “terms and conditions of their employment” are just as broad as they sound. They include pay, benefits, treatment by management, dress codes, workplace policies, scheduling, and more.
The most common violation of Section 7, at least in non-unionized environments, happens when employers restrict or prohibit discussions of wages. If you have policies or practices that explicitly or implicitly forbid employees from talking about how much they’re paid, you should eliminate those policies immediately.
Many activities protected by Section 7 may seem like common sense to limit or prohibit (e.g., griping about management or discussing pay), so it’s important that all managers are trained on and understand the law. Unintentional violations that don’t stem from corporate policy can be just as costly as any other, so education is key.
This Q&A does not constitute legal advice and does not address state or local law.
Question: Does taking FMLA intermittently affect an employee’s full-time status or eligibility for health benefits?
Answer from HR:
No. The Family and Medical Leave Act (FMLA) is clear on this point. You must maintain the employee’s coverage under any group health plan with the same conditions as if the employee had not taken leave and been continuously working full time during the entire leave period.
The specific coverage should also be maintained, both in terms of who is covered under the plan (e.g., employee, employee and spouse, employee and family) and what the coverage includes (e.g., medical, dental, vision).
This Q&A does not constitute legal advice and does not address state or local law.
Question: What is a total compensation statement
Answer from Kyle, PHR
January 23, 2025
There’s nothing wrong with calling candidates to let them know they weren’t selected, but whether it’s a good idea really depends on what your candidates expect and what you’re seeking to accomplish.Candidates expect an update after the completion of the interview process. You can set expectations by outlining your process when they first apply and by letting candidates know at each step how you intend to follow up with them and how quickly.You could also ask the candidates for their preferred method of communication. A checkbox on the application would do the trick. Just make sure whoever is following up with your candidates uses the preferred method.If you do decide to make a call, we recommend saying more than “We went with a different candidate” or “We found a better fit.” Take the opportunity to provide the candidate with objective feedback. You should also be prepared to answer questions on the spot. They might want additional details as to why they weren’t selected or ask advice about what they could have done better. Being ready to offer them useful feedback can end the candidate’s experience on a positive note, even though they weren’t selected for the job.
This Q&A does not constitute legal advice and does not address state or local law.
Question: Are we permitted to ask applicants about their immigration status?
Answer from Wendy, PHR
February 26, 2025
No, you shouldn’t ask applicants about their immigration status—for example, whether they are a citizen, naturalized citizen, lawful permanent resident, or refugee. Asking about applicants’ immigration status (or any protected class) could lead to discrimination claims in the following ways:
1. You ask and then intentionally use the information in your hiring decision (illegal)
2. You ask and then unintentionally use the information in your hiring decision, likely because of unconscious bias (also illegal)
3. You ask and do not use the information, but the applicant believes the information was a factor in your hiring decision (not illegal, but could still lead to legal drama and expense)You are allowed to ask questions about an applicant’s lawful ability to work in the United States or their potential need for sponsorship.
For example, you could ask, “Are you legally authorized to work in the United States?” or “Do you now or will you in the future require employer sponsorship?”.If you ask either of these questions, do so for all candidates and not just for those you suspect might need visa sponsorship or who may not be obviously eligible to work in the United States. You can add these questions to your job application or screening questions to ensure consistency.
This Q&A does not constitute legal advice and does not address state or local law.
