During our recent webcast,A Hire Purpose - Hiring & Retaining Top Talent, we received a number of questions highlighting the challenges small businesses face when hiring. Here we address frequently asked questions on recruiting, background and reference checks, new hire paperwork, and more.

Recruiting:

Q: What recruiting options should seasonal businesses consider? It's hard to get seasonal employees to return because they are typically looking for long-term positions.

A: Use recruiting channels that target workers who are specifically looking for seasonal work. For example, if you need workers during the summer months, consider expanding your search to high schools and universities or using social media. Also consider asking your existing employees whether they know qualified individuals who are looking for seasonal work.

To encourage seasonal workers to return the following year, consider incentives, such as a bonus or pay raise. Additionally, conducting exit interviews at the end of the season can help you identify what changes you can make to the workplace in order to improve retention.

Q: What is considered a "protected group?"

A: Generally, individuals with particular characteristics as outlined under the law are considered part of a "protected group" and are covered by nondiscrimination laws. Nondiscrimination laws protect employees, job applicants, and in some cases non-employees (such as unpaid interns), from discrimination in the workplace based on these protected characteristics.

Protected characteristics under federal nondiscrimination laws include, but are not limited to, race, color, religion, sex, national origin, age, disability, genetic information, and military status. Many states and local jurisdictions protect individuals with additional characteristics, so make sure to check your state and local law.

Nondiscrimination laws require, among other things, that all employment actions, including hiring decisions, must be job-related and not based on an individual's status in a protected group. If a candidate's protected status is revealed during the pre-employment process, this information cannot be used when making your selection decision.

Q: Can I ask applicants if they have been convicted of a crime on an application?

A: Many states and local jurisdictions expressly prohibit employers from asking about criminal history on a job application. These prohibitions are commonly known as "ban the box" laws. Even in the absence of a state or local prohibition, the U.S. Equal Employment Opportunity Commission (EEOC) recommends that employers avoid including questions about criminal history on application forms.

Note: Some of these laws prohibit employers from asking about criminal history until after a conditional job offer has been extended. For these and other reasons, it is a best practice to wait until after a conditional job offer before making inquiries into criminal history. For more information, see the Background & Reference Checks section below.

Q: I am new to recruiting. How can I find out if we are subject to ban the box laws?

A: For summaries of state and local ban the box laws, see the Criminal History: Restrictions on Employer Inquiries section of HR411's Compliance Database.

Q: On an application form, is it OK to simply state that applicants must be able to pass a background check before qualifying for employment?

A: Your state or local law may have specific rules for what you can and cannot say about background checks in job applications (and advertisements). For example, New York City's Fair Chance Act generally prohibits employers from stating in job advertisements and applications that a background check is required, unless the position is specifically exempt under the ordinance. Check your state and local law for more information.

Background & Reference Checks:

Q: Why is waiting until a conditional job offer to conduct background checks considered a best practice?

A: Waiting until a conditional job offer has been made before conducting a background check is not only a best practice, it is also required under certain laws. The EEOC has explained that an employer cannot disregard an applicant simply because they've been convicted of a crime because this could adversely impact certain protected groups. The EEOC encourages employers to gather all job-related information about candidates before making a decision, and assess any criminal history in the context of the job requirements. Generally, employers need to evaluate:

• How the specific criminal conduct, and its dangers, presents a risk and assess the circumstances surrounding the offense;
• Employment history before and after the offense;
• Rehabilitation efforts; and
• Employment and character references.

Additionally, from a cost and administrative perspective, it's best to wait to conduct a background check until after you've made your selection decision.

Q: If you have obtained the applicant's consent, how can you verify education claims made on applications forms?

A: One option is to contact the school's registrar's office to confirm dates of attendance, graduation, major, and degrees awarded. Also, be sure to verify that the school has been accredited by a nationally recognized accrediting agency.

Q: If I am contacted for a reference for a former employee, what information can I give?

A: When contacted for a job reference, the best practice is to provide only limited information about former employees, such as dates of employment, positions held, and in some cases, final salary or hourly wage. This is generally a preferred approach, since the information is limited to factual and objective data. If you choose to provide more information, make sure you are providing it in good faith; the information is accurate and job-related; and you provide the same types of information about all former employees. Employers should be particularly sensitive to the risks associated with providing a negative reference. Before disclosing any negative job-related information, make sure you have thoroughly documented the issue at the time it occurred.

New Hire Paperwork:

Q: What paperwork is required at the time of hire?

A: When hiring a new employee, employers must complete required paperwork and provide certain notices, including:

• Form I-9. Each new hire must complete an I-9 to verify work authorization. These should be kept separately from personnel files.
• Form W-4. All new hires must complete a W-4 to determine the amount of federal income tax to withhold from the employee's wages. Some states also require a tax withholding form.
• Notice of Coverage Options. Under the Affordable Care Act (ACA), employers must provide a Notice of Coverage Options to all new hires.
• State and local notices. Many states and local jurisdictions require that employers provide specific notices to employees at the time of hire.

Q: Is the ACA's Notice of Coverage Options required for all employers, regardless of the number of employees?

A: Yes, the Notice of Coverage Options is required for all employers, regardless of size, even if they don't offer healthcare coverage.

Q: Can I ask new employees to complete paperwork before their first day?

A: In many cases, new hire paperwork may be provided to individuals prior to their first day. For the I-9 form specifically, employees may complete only Section 1 before their first day of work if they have been offered, and have accepted, the job.

Q: Am I required to keep copies of the documents the employee provides for I-9 verification?

A: In general, there is no requirement for employers to make photocopies of the documentation provided by an employee to establish his or her identity and work authorization. However, if you do retain copies, you must do so consistently for all new hires. Photocopies should be kept with the employee's I-9 form.

Q: What do I do with old I-9 forms for terminated employees?

A: You must retain I-9 forms for at least three years, or for one year following the employee's separation from the company, whichever is later. At the end of the retention period, you can dispose of them, but you must take reasonable measures to ensure the records cannot be read or reconstructed.

Q: Instead of maintaining separate personnel and confidential files, can I just make sure the personnel files are kept confidential and put everything in there?

A: Some laws specifically call for certain records to be kept in a separate confidential file. Additionally, from time to time, supervisors may need access to an employee's performance history, disciplinary action history, and other job-related information in the employee's personnel file. But, they shouldn't have access to sensitive or protected information, such as information relating to an employee's health or status in a protected class. For these reasons, employers must maintain at least two separate files for each employee.

Conclusion:

Make sure your hiring and onboarding processes align with your business needs and federal, state, and local laws.