Are you up to date with all the rules and obligations of recruitment compliance? Compliance is a very important issue that must be taken into account at each stage of the hiring process! Learn everything you need to know to ensure the compliance of your whole hiring process.
As business survival strategies go, ensuring your business is compliant with all relevant labor laws is an obvious must.
Any failure in compliance can result in sanctions or financial penalties.
And then there’s the tarnish to your corporate brand, employer brand and industry reputation.
Whichever country or territory you’re doing business in, a big part of compliance is staying within the anti-discriminatory measures laid down by the law.
These kinds of regulations are designed to ensure that specific minority groups (in the US: race, ethnicity, religion, marital or family status, physical or mental disability, gender, age, and in some cases, sexual orientation) are not treated less favorably.
➡️ For more useful insights and tips on this topic, check out our Diversity and Inclusion Guide for HR Professionals!
The aforementioned regulations are especially relevant when recruiting, possibly because there are so many opportunities when hiring to discriminate:
Job specifications and job advertisement
Communications with candidates, including invitations to assessment and offer letters
Questions you ask during the interview,
The requirement to report specific employee data to the appropriate public service.
What’s more, there are your own in-house recruitment procedures which – realize it or not – you’re also expected to comply with as part of ensuring that all job candidates are getting an even chance.
Basically, when hiring, you’re looking to make a choice between the applicants based on experience, skills and qualifications, and ability to do the job – no other factors are relevant and any choice based on personal characteristics is likely to be illegally discriminatory.
The good news is that technology can help. Most HRMS packages with recruitment or recruitment software like TalentLyft functionalities will help keep your hiring managers and recruiters ‘on track’, with processes aligned to your hiring procedures, compliant template communications and messages, gathering of the necessary data, and automated notifications and reminders to managers to prompt action that must be taken.
So, just to be clear, compliance – proven adherence to the relevant in-house policies and both national and international laws – is an issue throughout the recruitment process.
Taking US federal law as an example, let’s look at the kind of compliance mandates that the average employer must take into account at each stage of the hiring process.
The key, when putting together your job specification and drafting the advertisement, is to avoid any language that implies the job is not open to certain applicants on grounds of race, color, religion, gender identity, sexual orientation, pregnancy, national origin, or individuals with disabilities. This is embedded in a number of US laws, for example, the Civil Rights Act, and the Americans with Disabilities Act.
Likewise, your choice of advertising (online or off-) must show that you attempt to hire from diverse sources. If you’re in any doubt about your compliance here, consider who you’re really reaching out to with that ad.
To take an extreme example, if you advertised in just one magazine, and that magazine has a predominantly white, male readership, you’re unlikely to be able to prove your compliance with anti-discriminatory legislation.
So, consider:
Where you advertise (internet and ‘print’).
The wording of your job advertisement (e.g. a recent UK survey for LinkedIn found that certain words cause different reactions, depending on gender).
Likewise, check the text of your job description for divisive or exclusionary phrasing.
Recruitment interviews tend to be at least semi-structured. As an interviewer, you start with some standard opening questions – the same for all candidates – and then dig deeper with follow-up questions according to their responses.
As with advertising, the basic compliance principle is not to discriminate. This means incisive-yet-neutral opening questions and a degree of awareness when formulating the follow-ups.
The first questions you ask an applicant are in your application form – check that you’re not asking for something which inadvertently excludes a section of the population.
Check your standard interview questions too – in particular, consider whether all questions are relevant to all candidates; for example, some employers might ask a female candidate whether she’s considering having children in the future but wouldn’t ask the same of a male candidate… very difficult to defend without being discriminatory.
Similarly, any assessment tests or exams must not give one group of applicants an unfair advantage over another.
Having chosen your lucky new hire, you might think the ‘danger’ has passed. But the same federal provisions apply to communicating the results of interviews and assessments to candidates.
What’s more, when checking references or carrying out background checks (verification of their employment and academic history verification, credit checks, drug tests, driving records, or arrest and conviction records) on the newest member of your team, under the Fair Credit Reporting Act you need their written authorization.
On the other side of the fence, from the perspective of the ex-employer providing a reference for your newbie, they cannot refuse to give a reference, or give one that is negative or false because of the person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. And by extension, as the hiring employer, nor should you accept such a reference.
Finally, an obvious point: have your employment contracts checked by a compliance-savvy lawyer to ensure that once the successful candidate is on the team, they’re not being treated less favorably than anyone else.
The above applies to all businesses. However, there are a couple of additional grounds for discrimination that employers need to be aware of.
If you’re a federal contractor in the US, your recruitment compliance is monitored by the Office of Federal Contract Compliance Programs and also includes being careful not to discriminate on grounds of ‘protected veteran status’ and furthermore, engage in affirmative action for veterans and employment-qualified workers with disabilities if the value of the contract exceeds a set dollar limit.
In the US, there are currently no federal protections prohibiting discrimination on grounds of sexual orientation. However, while this may seem an odd omission, depending on your location there may be local, jurisdiction-specific laws. Regardless, many employers do include sexual orientation in the list of characteristics as part of their approach to fair hiring.
As is probably obvious by now, recruitment compliance, in a nutshell, comes down to fair treatment and ensuring each vacancy is open to all candidates who can do the job.
This is primarily a question of reviewing processes and standard documents and templates to ensure the language is appropriately encouraging to all.
Once you have your compliant texts and templates, they can be built into your recruitment software or HRMS. A 2019 Software Path survey found that the most popular reason for investing in new HR technology was “increasing efficiency”.
There’s little doubt that automated compliance is the easiest and most efficient approach to recruitment, offering the very practical benefit of not being fined or sanctioned following a government audit.
Dave Foxall is a writer for HRMS World who has worked as HR Manager for the Ministry of Justice for a number of years, he now writes on a broad range of topics including jazz music, and, of course, the HRMS software market.
