Recruitment and Hiring is an important aspect of Human Resources Management, for it is here that candidate employees first come into contact. In recent decades, the process of interviewing and screening candidates for possible employment has become more systematic and sophisticated. Corporate laws have also caught up with the needs of organizations. Vice versa, more regulations are imposed on companies to comply with basic standards during recruitment and hiring. In other words, corporate laws pertaining to usage of employee/candidate information have gotten stringent over the years. This is a positive development, for otherwise, important private information will be subject to misuse and exploitation. The rest of this essay will outline key laws, regulations and principles for recruiters to mull over as they discharge their duties in the HRM department.
It is common practice for employers to scrutinize past behavior of a potential employee and make sure that the latter is not prone to criminal or other disruptive behavior. (Connerley, et. al., 2001, p.73) But conducting background checks on prospective employees is wrought with risk. Previous employers are also caught in a quagmire for the risk of eliciting a defamation suit from disgruntled former employees. Hence, employers should make sure that they abstain from giving false or defamatory statement regarding their former employees. Other criteria that could lead to a defamation claim are: “an unprivileged publication to a third party; fault amounting at least to negligence on the part of the publisher; and either action-ability of the statement irrespective of special harm or the existence of special harm caused by the publication.” (Long, 1997, p.190) Hence, in order to comply with state and federal laws, careful avoidance of defamation of former employees is crucial.
The Civil Rights Act of 1964 is the foundation for modern corporate defamation laws. It lays out the limits and expectations of the legal relationship between workers and their managers, especially Title VII of the Act. The courts and state legislatures, having identified that the employees are the ones holding upper hand in defamation suits have promulgated statutory reforms in recent years. It is perhaps a measure of these reforms that “in an effort to increase the free exchange of references, at least twenty-six states now provide some type of statutory immunity for employers when they provide a reference. Prior to 1995, only five states had such laws.” (Long, 1997, p.190)
Hence it is important for employers to ensure no discrimination exists, either in the form of racism, sexism or ageism in the hiring process. It is also important that the tests for selection and appraisal are standardized in order to prevent claims of arbitrary and / or discriminatory hiring practices. (Fuss & Snowden, 2004, p.54) Disparate Treatment and Disparate Impact are two theories under Title VII of the United States Civil Rights Act. Together, they were intended to prohibit discriminatory actions on part of employers toward racial, sexual or class minorities. The theory of Disparate Treatment first came into judicial discourse in the Griggs v. Duke Power Co. During and after this case, the term “business necessity” became central to deciding such cases. If business managers treat minorities in a disparate manner in the absence of compelling business needs, then their action can be construed as discriminatory and in violation of provisions under Title VII. In all disparate treatment cases,