Perez Online Law Office
You are here: Law Guide >> Employment >> Recruitment and Hiring >> Filling an Open Position

Filling an Open Position

Do I need a job description?

Though job descriptions are not required, they prove helpful in identifying the characteristics and experiences you would like to see the candidate possess. The job description normally includes the duties and tasks of the job; it may describe what tools the applicant may use to be successful, (e.g., "must know Excel"); and often lists the skills, education, requirements and abilities that the candidate should have.

Having a job description also makes it easer to screen resumes and applications that you may receive. If applicants do not meet the requirements of the position, then they need not be considered further.

The job description also benefits the candidate, serving as a tool to prepare for a successful interview and as a roadmap regarding what will be expected of him should the position be offered.

CAUTION: Be aware that all requirements for a job carry the same weight. You need to remember that under the Americans with Disabilities Act (ADA), an applicant cannot be rejected if a reasonable accommodation can be made for the individual’s disability.

How do I advertise an open position?

There are a number of methods by which you can get the word out about your position. These include:

  • word of mouth
  • employee referral
  • newspaper advertising
  • Internet posting
  • employment agency

Word of Mouth. This is the least expensive means to find applicants. It usually entails getting word out to friends that a position is available and asking if they know anyone who would be qualified. The plus side is that you will often receive candidates that are a known entity. The downside is that often the position may not get enough exposure, limiting the applicant pool.

Employee Referral. This method is similar in scope to word of mouth. Here, employees are asked to refer people they know for the job. They are often paid a bounty for recommending good people. Employees usually recommend good employees because they feel their reputation is at stake if they recommend someone.

CAUTION: In both of these methods the employer needs to be aware of the demographics of its workforce and the people from whom they seek recommendations. If the group is too similar in background, the Equal Employment Opportunity Commission (EEOC) may say that the recruitment process implicitly discriminates against women or minorities.

Newspaper Advertising. This method works well, particularly if you are looking for local candidates. The cost is relatively small.2

Internet Posting. This method is the most likely to bring in the greatest number of applications. The most common Web sites that are used are www.monster.com, www.hotjobs.com and www.careerbuilder.com. The cost to post is relatively low.

Employment Agency. These firms charge a fee, typically 20 to 33 percent of the employee’s salary. They will locate and screen applicants for you, and will present only those that best meet the criteria of the job. This source is the most costly.

Is there any law that requires the posting of a job?

There are no federal laws that have such a requirement. You do need to be aware that posting can help in the event of an EEOC discrimination claim.

TIP: It is beneficial to place at the bottom of any employment posting that "ABC Company is an Equal Opportunity Employer."

Am I required to use a formal job application?

There is no formal requirement that you have an application. Many companies use them because it standardizes the information the candidate is giving you, such as past employers, specific skills and contact information. The application also puts the candidate on notice and seeks consent that

  • you may verify the information on the form;
  • the individual may be subject to drug testing if it is the company policy to do so;
  • if hired, the individual understands he is an "at will" employee;
  • references can be checked; and
  • should any information prove false, the individual may be subject to discharge.

Can I take notes on the application?

Notes of any kind should not be made on employment applications or resumes. Anything that is recorded may be discoverable if there is a lawsuit in the future.

How long must I keep applications if I use them?

Keep solicited applications at least 1 year. Unsolicited applications can be discarded immediately; however, it is a better practice to hold on to them for a year as well.

CAUTION: Should you elect to discard unsolicited applications and resumes, you should discard all that are received. Picking and choosing can result in a disparate treatment claim by a human rights agency.

What is an "at will" employee?

An "at will" employee is one who can be let go for any reason, provided it is not discriminatory. This individual may also resign for any reason.

CAUTION: An employer needs to be careful in the representations made to employees so as not to alter this "at will" status. Statements such as "you can expect a long career with our company" can potentially alter "at will" status.

May I ask whether someone is an alien to the country?

The proper question should be, "Are you legally allowed to work in the United States?" If the person responds in the affirmative either verbally or in writing, it is not necessary to verify this information until after an offer of employment has been made.

Is drug testing of job applicants permissible?

Drug testing does not fall under the ADA and is permissible. It is important to note that if testing is done, it be done for all applicants. Confidentiality is also essential. The results of the test should only be shared on a need-to-know basis. Some states will allow testing only to ensure the safety of workers and others.

Can a potential employer require medical examinations?

The ADA does not permit medical exams before a tentative offer of employment is extended. As with drug testing, if the exams are given, they must be given to everyone. Medical questions should be directly related to the key functions of the job for which the individual is applying.

SIDEBAR: The ADA only applies to companies that have at least 15 employees

May applicants be required to submit to a lie detector test?

No. Both the federal government and many states strictly prohibit polygraph testing, except under very limited circumstances involving national security, private sector security firms and the pharmaceutical industry, or if there is reasonable suspicion of someone being involved in a workplace incident.