Legal issues you need to consider when recruiting

Whether you’re a new business looking to hire your first employee or an experienced entrepreneur looking to expand, it is good to know the legal hurdles you’ll need to jump over to minimise risk. These hurdles come in all shapes and sizes ranging from discrimination laws to employee contracts and background checks.

Luckily, you have this article to help you navigate these hurdles and you’ll be on track to (legally) recruiting your exciting new employees


The first and foremost, consideration is discrimination. That is, factors such as race, religion, gender, sexual orientation and age should not be taken into selection criteria. Instead, employers need to focus on potential employees’ ability to complete the job and give a chance to all possible applicants to apply.

Specifically, your job postings, advertisement and designated interview questions must be free from any content that may explicitly or implicitly discriminate against certain applicants.

The Interview

This means, your designed interview questions need to be worded in a fashion that tests the capability of a potential employee and not related to their gender, religion, race or age. A few examples of how some questions can be worded include:

  • Are you authorised to work in this country? Instead of: Are you a U.S. citizen?

The latter statement could be taken to suggest racial discrimination, while the former inquiries about authorisation to work.

  • Can you work to our tight schedule? Instead of: Are you religious?

Again, the second statement may suggest discrimination based on religion while the first is simply confirming whether can employee can work when you need them.

As you can see, it is very easy for a good-natured question to be accidentally interpreted as discriminating, so be sure to word your questions in the correct manner. For some ideas, the articles here and here are very useful resources.

Making an Offer

When you are making an offer, it is important to ensure that the wages offered are based on the applicant’s skill, experience and responsibility. Factors on gender, race, age or religion should not be taken into account when making the final offer to your potential employee.

Background Checks

As an employer, you want to make sure you have the best candidate for the job. For many, this means running extensive background checks on potential hires. Unfortunately, while some checks are perfectly okay, others are illegal or require consent.

Criminal Records

The general policy among states is that you are allowed to check criminal records if it is related to the job (e.g. hiring a security guard or pre-school teacher). However, when in doubt please check your state legislation because it may vary from state to state.

Reference Checking

Reference checking seems like a very normal part of the recruiting process. However, there are actually rules and regulations that must be followed. Some rules include:

  • Obtain consent before checking references
  • Never ask for information that could be discriminating
  • Never cold call potential referees you have found yourself

School Records

Again, this may seem like very standard recruitment procedure. However, you must never dig up a potential hire’s academic records without his or her consent.


It is actually not necessary for you to give potential employees written contracts. However, it is often very helpful to specify each party’s rights and obligations in case of further dispute. Further, when complex working arrangements exist, it is best to spell them out so each party is clear on procedure.

Monique Goodyer works as a marketing specialist at Monaco Compensation Lawyers, one of Australia’s compensation law firms. She’s interested in all things online and the latest trends in social marketing.

Topics: Employees and Management
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