Hiring is up for competitive jobs, and that also means a “cottage industry” is growing for possible lawsuits over companies’ promises, practices and patterns in employment searches and candidate choices, an attorney warns.

Businesses are hiring again, and with better prospects come more scrutiny by disappointed job seekers over companies’ promises, practices and patterns in employment searches and candidate choices.

From the words in job listings to the vetting of applicants, litigation has clamped on to the competitive job market, said attorney Todd R. Wulffson, a business and labor expert with the Irvine office of Carothers, DiSante and Freudenberger.

“There is a cottage industry of people trying to make money off of hirings by doing everything from dissecting the job posting to talking to people who didn’t get hired,” Wulffson said in a telephone interview.

He said businesses need to make sure they can withstand scrutiny, both from lawsuits and government agencies such as the federal Equal Employment Opportunity Commission.

Companies should conduct a self-audit of its outreach and hiring patterns, he said.

“If you are getting the diversity you expected, great. If you are not, maybe you should look at your processes. If you have an explanation for that, fine. If you don’t have a way of explaining it, then someone else is going to do that for you,” he said.

Lawsuit filings can range from the words a business uses in want ads, the language of responses to applications, to which applicants were chosen for interviews, and a whole spectrum of issues over use of social media to research candidates.

“Social media for applicant searching is a horrible idea,” Wulffson said.

An unauthorized detailed background check for hiring purposes is actually a violation of federal law, he said.

And such checks often come “way to soon” in the process, Wulffson said. Authorized background investigations should take place as a contingency after a job offer is made, he said.

And information from sites such as Facebook or Twitter can tell prospective employers far more than they need to legitimately know about a person. Discovery that such sites were used can lead to litigation.

One defensible reason for reviewing social media is for a “face-of-the-company” job, Wulffson said – then behavior, statements, and images on social media have relevance.

But generally, social media as a hiring tool “is absolutely the bane of my existence,” said Wulffson, who represents businesses in such litigation.

“There is rarely a lawsuit that does not have some kind of social media request as part of the discovery ... instant messages (from a hiring manager) to friends about a candidate gets picked up, and sometimes it is horrifying,” he said.

“The content of the ad has to have a good job description, and then work backwards in a concise, neutral way,” he said.

Also, “ ‘fresh, energetic employees,” sounds like you are looking for young employees. ‘Sports-minded’ could bring a class action lawsuit that you were looking only for men. ‘Strong communication skills’ is fine, ‘strong English language skills’ can be seen as prejudicial,” Wulffson said.

“Age discrimination is the biggest increase in litigation,” Wulffson said. “It’s still hard to get a job and its harder in your 50s than when you are in your 30s.”

Contact the writer: or 951-368-9573


Source: The Press Enterprise

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