An Ounce of Prevention: Smart Hiring Practices

“HOW DO WE NOT GET SUED BY EMPLOYEES!?” is the perennial question employers ask me. Bigger companies have HR departments, but too often I’ve seen small businesses overlook this crucial aspect of management, and then find themselves in over their heads when things go wrong. When even an unsuccessful lawsuit can cost $50,000-$100,000 to litigate, and employee turnover wastes time and money, having a good HR consultant is something that small businesses can’t afford NOT to have. Like preventative medicine, keeping your business healthy in the beginning can avoid costly trips to the emergency room (i.e. court room) later. One of the easiest, and earliest, ways to avoid being sued by employees is a smart hiring practice.

Most wrongful termination claims come from former employees who never should have been hired in the first place. Additionally, most failure-to-hire claims could have been avoided with an informed interview process. The three stages of smart employee selection are the Pre-Interview, Interaction with the Applicant, and the Final Selection Process.


Before you begin the hiring process, make sure you know exactly what you are looking for. What are the essential function of the job, and the required qualifications of potential employees? Make the job description detailed and explicit. This is a good time to review what measures might be taken to accommodate disabilities, and ensure that such measures are ADA-compliant. Develop a consistent interview plan, involving selection criteria and relevant information to elicit. A consistent matrix for scoring applicants can be very useful. Make all screening and reference requirements known.

Interaction with the Applicant

Now that you know on what basis you will hire an employee, make sure that you apply your interview plan to all applicants equally. Even seasoned interviewers can be swayed by charming smiles and small-talk prodigies. The guy you’d like to drink a beer with is not necessarily the best guy for the job. Applying your plan with rigor and consistency will help you see through charisma, and also protect you from unsuccessful applicants claiming that they didn’t get the same chance to talk about their skills as others did.

It’s also very important that everyone involved in the hiring process knows the difference between acceptable and inadvisable questions. Questions about protected status (race, age, gender, disability, national origin) can be anywhere from insensitive to downright illegal in an interview. Even stray thoughtless comments can have disastrous effects. In one of my cases, a young woman interviewing an older woman mentioned that she liked the youthful culture of the office, and how many of the employees would go out to bars together. It wasn’t much, but it was enough for a failure-to-hire claim.

Effective interview questions elicit the applicants qualifications and competencies. Questions like “Tell me about your experience with Excel” or “Give me an example of a time when you helped a difficult customer” give applicants a chance to talk about their experience in a way that reveals their behavioral tendencies and attitudes. Take good notes during each interview and keep track of them; extensive documentation is the best defense against a failure-to-hire claim.

The Final Selection Process

Once you have gathered all your interview data, apply your selection criteria without bias. As with every other part of the interview process, DOCUMENT YOUR REASONING for your final hiring decision.

Who you hire is the most basic step in building your company and its work environment. Smart hiring practices will create better hiring decisions and a reduced risk of legal liability, creating a harmonious and efficient workplace that’s better for everyone. An ounce of good hiring practice is worth a pound of defense lawyers.