Legally Speaking: Avoiding Regrettable Hiring Decisions

Tom Clement
Thomas Clement, Vice President, Operations and General Counsel

With workforce participation lagging well below available job openings and a working environment that is more skill-set specific, hiring in today’s market can be a tall order. This pressure on the job market is only heightened during the busy holiday season. We have heard from countless retailers who are struggling to find qualified employees; so much so that they run the risk of making hiring decisions without properly vetting candidates. This is a critical error that can result in employee criminal activity, expose you to civil liability, and cause your insurance premiums to increase.

Avoiding missteps during the hiring process is far easier than having to deal with a troublesome employee that is already on the payroll, and the steps you should be taking are neither complicated nor cost prohibitive.

A background check is the most comprehensive step you can take in the hiring process. A simple internet search will yield numerous entities that perform these services and, in the process, comply with all aspects of state and federal law. Before moving forward with a background check, however, be certain to let the prospective employee know that this will be done and get their written acknowledgement and consent. These reports generally cover all of the pertinent areas of concern including criminal and driving record, credit history, employment and education history, military records, civil cases they were involved in, and drug testing, if requested. Obtaining this level of information should provide a good picture of your candidate and whether they are a good fit with your business.

While most employment relationships in Michigan are at-will, another good practice is the implementation of a probationary period. These often last three to six months and allow both employer and employee to determine whether the arrangement is working out. Additionally, eligibility for certain benefits, such as a 401k or paid time off, may not trigger until the completion of a probationary term, subject to certain legal and timing requirements. Probation should include regular reviews with the employee to discuss areas where improvement is needed. If using a probationary period, it is important to communicate that the employee’s at-will status is in effect both during probation and following its completion.

While these are just two of many wise hiring practices, a small investment of time and money at the front-end of the hiring process can provide a high return on investment if you avoid just one bad hire!