Help Wanted: Recruiting During a Labor Shortage

By:Jeffrey K. Lewis, Attorney and Research Specialist, Agricultural & Resource Law Thursday, November 04th, 2021
Help wanted sign in front of truck and corn field.

Over the past few months, we have all heard about the labor shortage affecting American employers in various industries all over the country.  Now is as difficult a time as ever to find employees.  As an agricultural employer, it may be easy to relax some of your established policies and procedures when going through the employee recruitment process, especially while navigating the labor shortage.  But, as an employer, you are obligated to comply with state and federal law regardless of the labor climate.  Below we review a few important concepts to help refresh employers of their obligations under Ohio and federal law when they engage in the recruitment process. 

Walking the fine line of job descriptions.  One of the first thing an employer should do when beginning the recruitment process is to define the job qualifications in order to identify the minimum qualifications an employer is willing to accept in a new employee.  However, some care should be taken in this step.  If an employer has unrealistic expectations, it may make it difficult to fill the position.  Then, out of frustration or urgency, an employer will fill the position with someone that does not meet the stated minimum qualifications.  This creates a problem if an employer ends up hiring an employee that does not meet the minimum qualifications after previously rejecting other applicants with similar qualifications.  Those rejected applicants may have a lawsuit for employment discrimination.  On the other hand, if an employer’s written expectations are too low, an employer may have a difficult time defending its decision to reject an individual who met the stated minimum qualifications while the employer searched for someone who met what the employer was really looking for.  An employer needs to be consistent and stick to its stated qualifications when making employment decisions or risk opening itself up to employment discrimination lawsuits.  

Defining the essential functions of the job is essential.  Creating a comprehensive and detailed job description and a list of job qualifications helps employers narrow its applicant pool and provides a basis to make certain employment decisions.  It also helps employers define the essential functions of a job which helps employers stay compliant with Ohio and federal employment laws.  For example, The American with Disabilities Act (“ADA”) makes it clear that an employer does not need to employ someone who cannot perform the essential functions of the job.  This does not mean that every function performed by an employee is “essential.”  The Equal Employment Opportunity Commission (“EEOC”) makes it clear that marginal functions of the job are not “essential.”  Some of the factors that help determine what functions are essential include: 

  • The employer’s judgment as to which functions are essential; 
  • Written job descriptions prepared before advertising or interviewing applicants; 
  • The amount of time spent on the job performing the function; and 
  • The consequences of not requiring the employee to perform the function.    

Job Applications.  Most employers understand it is unlawful to discriminate against employees or potential employees based on race, religion, sex, national origin, age, or disability.  On job applications, however, employers need to be careful when asking what may seem like innocent questions that relate to things like age, religion, national origin, marital status, children, criminal history, U.S. citizenship, medical history, or disability.  Asking these types of questions may lead to a finding that an employer engaged in a discriminatory practice.  For example, it is permissible to ask if an applicant is legally permitted to work in the United States; it is impermissible to ask where someone was born.  It is permissible to ask if someone is able to perform the essential functions of the job; it is impermissible to ask if someone has any health issues that would prevent them from doing the job.  These are just a couple examples of the types of questions an employer is allowed to ask on an application.  Employers should consult with an attorney to make sure that all questions on an application are compliant with state and federal standards.  

Pre-employment drug and alcohol testing.  There are no laws that prohibit employers from testing its employees for drugs and alcohol.  However, there are laws that regulate the timing of such tests.  To help employers, the ADA separates testing into two categories, “pre-offer” testing and “post-offer” testing.  In the pre-offer stage, an employer may test a potential employee for any illegal drug use but cannot test for alcohol.  Illegal drug use is not protected under the law.  However, employers need to be careful from automatically disregarding all employees that test positive for controlled substances.  A person with chronic back pain may have a perfectly legal reason for having certain substances in their system, especially if they are under a strict pain management program.  Once an employer learns of an employee’s legal justifications for certain controlled substances, an employer cannot use the information as basis to refuse employment, terminate, or discipline an employee.  In the post-offer stage, employers are allowed to test for alcohol.  Testing for alcohol is considered a medical examination, and employers are only allowed to subject their employees to medical examinations once an offer of an employment has been given.  Regardless of which type of testing an employer seeks to use, employers must be consistent in the way they implement such testing.  Testing must be done in a non-discriminatory manner, meaning an employer must make all employees take the same test or forgo any testing at all. 

Background Checks.  Ohio does not prohibit the use of background or credit checks on potential employees.  There are, however, several regulations that relate to employers that use background or credit checks.  First, background and credit checks are subject to the federal Fair Credit Reporting Act (“FCRA”) which requires employers to obtain written consent from the applicant, give the applicant notice of the employer’s intention to reject their application based on the results of the background check, and notify the applicant of any final decision to reject the applicant because of the background check.  Additionally, employers need to be careful about how they handle prior arrests and convictions.  If an employer does decide to reject an application based on any prior arrests or convictions, the employer needs to consider the nature of the job, the nature and severity of the offense, and how much time has passed since the offense.  For example, if a farmer is looking to hire a general farm laborer, a conviction for driving under the influence from 10 years ago may not be sufficient grounds to reject an application.  Unless the position requires the applicant to drive on a consistent basis, the offense may not really be related to the nature of the job.  Furthermore, enough time may have passed that would make it discriminatory to reject an application for this type of offense.  

Interviewing.  Interviews are ripe for potential discrimination claims because they are less structured than applications and insert the “human element.”  When conducting an interview, employers should stick to a script.  A script will help an employer avoid potential discrimination lawsuits and gives the employer the ability to carefully select its interview questions.  When asking questions, an employer is not liable for any information that an applicant willingly provides.  For example, if the questions is “tell me about yourself” and an applicant provides information about a medical condition or their family, an employer cannot be found liable for any discriminatory practices.  An employer cannot, however, use the information to make any employment decisions.  If an applicant is providing too much information, it is best for the employer to quickly move on to the next subject to avoid eliciting any other information that could be used against an employer in a discrimination lawsuit.   

Hiring.  When deciding to choose one applicant over another, employers need to have a fair and equal system in place.  Employers need to be able to point to a specific procedure that demonstrates an employer’s nondiscriminatory reason for choosing on applicant over another.  For example, if one applicant is more qualified than another for a job, it is easy to prove a nondiscriminatory purpose for hiring the more qualified candidate.  If there are two equally qualified candidates, it is even more important to have a nondiscriminatory procedure in place when deciding between the two applicants. For example, an employer could have a policy in place that states if two equally qualified candidates apply for the same position, the candidate that applies first shall be given the job offer.  

New hire reporting.  All employers are required by the U.S. Customs and Immigration Services to verify the identity and employment eligibility of all employees by filing out Form I-9.  Ohio employers are also required by the Ohio Department of Family and Job Services (“ODFJS”) to report the hiring, rehiring, and return to work of paid employees.  The new hire report must be completed within 20 days after the employee is hired or returned to work.  

Conclusion.  In these trying and difficult times, compliance with state and federal regulations may be the last thing on an employer’s mind.  However, these laws are always in effect, regardless of circumstance.  Complying with state and federal laws will only help employers defend any employment decisions and to avoid potential employment discrimination lawsuits. 

References and Resources

Ohio Revised Code Chapter 4112 – Civil Rights Commission

Americans with Disability Act, 42 U.S.C. §§ 12101-12117

Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.