As the unique state of the current labor market shows, high unemployment does not translate into less intensive recruiting and interviewing practices. Special care should be taken at every stage of the hiring process to establish legally compliant systems that produce top-tier prospects. Below, Baker Jenner provides four important considerations for businesses aiming to add talent.
1. Legal compliance starts before you speak to candidates.
Despite Georgia’s status as an at-will employer state, protected classes provide carve-outs for a significant portion of the state’s workforce. These classes include (but are not limited to) race, sex, national origin, and religion. With the help of counsel, you should carefully scrutinize job postings and avoid even the appearance of favoring particular demographics or cohorts. Apart from the more obvious violations, such as asking a candidate about her apparent pregnancy, there are countless subtleties that could lead to employment law claims. For example, stating that an open position is suited for a “young” or “energetic” candidate could culminate in an ageism claim. Compliance matters aside, job postings should concisely list prerequisites, desired qualifications, and job duties.
2. Do not automatically recoil from candidates subject to non-compete agreements.
Hiring a candidate currently under a non-compete agreement does not always portend legal action. Georgia’s Restrictive Covenants Act permits non-competes on the conditions that agreements are reasonable in geographic area and length of time and the non-competes protect legitimate business interests. Our previous blog post on non-competes provides more insight.
While Georgia has a well-earned reputation as an employer-friendly state in the context of non-competes, there are actions your company can take to recruit and hire top talent without becoming vulnerable to tortious interference claims. Quality legal counsel can advise you on the likeliness of litigation from an employee’s former employer and suggest ways to subvert a non-compete. One way to avoid a lawsuit is hiring an employee in a non-competitive capacity for the duration of the agreement. In many cases, non-competes may not be enforceable if the employee does not go to work for a direct competitor of his or her former employer.
3. The federal independent contractor test remains fluid.
Early in May, the Department of Labor abandoned the proposed rule which would have slightly modified the test for classifying workers. The federal rule is still the economic realities test, which has seven equally weighted factors:
- The degree to which the worker’s duties are integral to the business;
- The permanency of the working relationship;
- The extent of each party’s investment in facilities and equipment;
- The amount of control the employer has over the worker;
- The extent of the worker’s profit and loss opportunities;
- The amount of initiative and skill required by the worker; and
- The amount of flexibility and independence inherent in the employer’s operations.
4. Protect your trade secrets during the application process.
As Baker Jenner previously wrote, a proactive and collaborative approach is best for crafting effective employment agreements that protect your company’s trade secrets. Depending on how you structure your interviewing process, you might need to divulge proprietary information. Rather than hiring based on a preliminary phone conversation and subsequent face-to-face interview, we advise you to implement a component of the application process which involves a candidate’s direct engagement with the position’s job duties. Should this require disclosing proprietary information, you need to engage legal counsel in a discreet manner to protect that information.
What’s most rewarding for the team at Baker Jenner is contributing to, and becoming a part of, a company’s success. We are aware of the unique challenges faced by companies in emerging industries, and we pledge to be with you in the boardroom and the courtroom. Our focus is on helping your operation succeed and saving you money by providing intentional and strategic legal representation. Let’s talk soon.
Baker Jenner LLLP
