I/O Psychology in HR: Legalities of the Job Description

In the United States, an organization’s employment practice is regulated by the federal and state laws. The Civil Rights Act of 1964 requires equality of employment opportunity regardless of people’s gender, race, religion, or national origin. The Equal Pay Act of 1963 proscribes discrimination in compensation on the basis of sex. The Age Discrimination in Employment Act of 1967 protects older people with respect to hiring and compensation. The Americans with Disabilities Act of 1990 makes it unlawful for discrimination against disabled individuals in employment. The Equal Employment Opportunity Commission (EEOC) was created in 1965 to enforce employment laws (Levy, 2010).

When hiring new staff in a company, HR managers may use the Concept Map Generator to analyze job tasks. An example of concept map for a Software Programmer position is demonstrated in Figure 1 (see Appendix). In a job creation process, HR professionals must adapt right strategies to deal with legal issues. This article discusses the legalities of staffing new positions for a mid-sized company. Legal considerations for job description and compensation are analyzed. Strategies for the hiring process are discussed to outline proper approaches for mitigating the potential legal issues surrounding the filling of new positions.

Legal Considerations in Creation of Job Description

In organizations, managers and HR professionals conduct job analysis to collect information and identify requirements and responsibilities of a particular job. Job analysis is “the process of defining a job in terms of its component tasks or duties and the knowledge or skills required to perform them” (Levy, 2010, p. 59). One of important goals and outcomes of job analysis is job description. A well written job description consists of a job title and extensive information about the work context including job duties, work activities, and tools and equipment; the description also contains competency requirements, performance standards, and compensation information (Aamodt, 2010).

Writing job descriptions can be challenging because it involves both work competencies and legal considerations. According to Patton (2013), organizations should pay attention to common mistakes in job descriptions that may raise legal concerns. For example, a job description should avoid using gender-specific terms even if one gender is usually in the majority for the job; responsibilities and duties in the job description should be gender-neutral. An organization should not tailor job descriptions to fit favorite groups of applicants such as a specific culture or race; also, “job descriptions must be inclusive of the regulatory and compliance requirements for a job” (Patton, 2013, p. 143).

A job description serves as a communication profile for both employees and employers to understand and agree with the job requirements and expectations, therefore the job description must clearly and accurately describe critical work competencies, and the organization needs to make sure job applicants and employees read and comprehend the job description. Because feudal and state laws regarding employment change over time, job descriptions should be updated to reflect latest standards and regulations. Employees on the job role should read and sign the updated job description and have a copy placed in their file.

Legal Considerations in Compensation Determination

As required by the Equal Pay Act, women’s compensation should be equal to that of men when they perform same jobs; this law was aimed to “eliminate discrimination and the negative effect on living standards caused by women receiving lower wages” (Giapponi & McEvoy, 2005, p. 140). In HR practice, an organization needs to be aware of potential misconducts by differentiating employees in any establishment on the basis of sex. If workers of one sex are paid less than the wages for worker of the opposite sex when they conduct for equal work under similar working conditions, legal claims may be filled on the basis of the Equal Pay Act.

A common legal consideration in determine compensation is that “the process of job evaluation is dependent on judgment that may result in sex bias” (Gilbert, 2012, p. 147). This bias, often against women, may influence employers to undervalue capabilities of female workers even if workers of both genders demonstrate similar competencies and qualifications. Sex bias may also prevent women from promotion for more important positions paid with higher salaries. As a result, women may be undervalued and discriminated by unfair compensation, which would certainly trigger legal claims.

In addition to unequal compensation for women, organizations may fail to enforce equal pay across races, for example, job positions may be approximately segregated by race thus employees of certain race in the protected classes may have difficulty to move up to high-paid positions. To avoid legal claims on unfair compensation, organizations should treat job applicants and employees of different races fairly and give them opportunities to demonstrate their abilities and communicate their qualifications in order to ensure an accurate and unbiased assessment of compensation offer (Connerley, Arvey, Gilliland, Mael, Paetzold, & Sackett, 2001).

Strategies for Mitigation against Legal Claims

When applying for jobs, applicants expect their rights to be fulfilled “in terms of two dimensions: respect for privacy and fairness in evaluation and treatment” (Conneley, 2001, p. 3). Job applicants can file legal claims under the federal Civil Rights Act and many state laws if they feel their rights have been violated. To avoid potential damages, organizations should develop strategic policies and procedures to mitigate risks of legal claims in the employment practice.

Employers use various instruments to examine job candidates in making hiring decisions. In addition to checking job applicants’ background, references, education and professions, and criminal history, employers increasingly investigate an individual’s credit history as well (Calvasina, 2010). For credit checking, employers must comply with the primary regulation of the Fair Credit Reporting Act of 1996 which requires consent from an individual before the organization can request a credit report of the individual. Calvasina (2010) suggested to “use credit information for employment purposes only if the credit information is job related” (p. 97) because it is easy to bring up concerns of privacy and discrimination.

It is essential for organizations to thoroughly investigate job applicants’ background in order to determine applicants’ honesty, stability, and qualifications for the position because “employers are concerned about workplace violence and the threat of negligent hiring lawsuits” (Woska, 2007, p. 81). When employers contact references for background checking, they should restrict questions to work and competency related contexts only but avoid questioning gender, race, age, religion, national origin, disabilities, or other protected categories since employment laws apply to hiring procedures including background check.

Job interview is an important technique to evaluate applicants’ knowledge, skills, and abilities (KSAs) needed for the position. HR professionals should be sensitive to privacy and discriminatory in the interview process. An interview should be structured to focus on KSAs and avoid personal and illegal questions that lead to privacy invasion and discrimination. All job candidates for a position should be asked with the same set of questions in the same ways and be assessed objectively based on job related competencies. For example, if a man and a woman were interviewed with the same questions and they were found to have the same qualifications but the man was hired because he seemed to be more motivated, then the organization had to “prove that the decision was based on a judgment about the applicant’s motivation, not on the applicant’s sex” (Gómez-Mejía, Balkin, & Cardy, 2012, p. 99).

Conclusion

An organization’s employment practice is regulated by federal and state laws. Violation of employment laws can result in legal claims. To mitigate legal risks, employers must develop strategic policies and procedures for the HR practice. In job analysis, job description must be carefully crafted to avoid bias on gender, race, and other protected categories. Organizations should update job descriptions to reflect new regulations and ensure job candidates and employees read and understand them. When determining compensations, an employer must comply with the Equal Pay Act and enforce equal opportunity and equal compensation for worker of all genders and races. In background check for new hiring, organizations should restrict the use of credit history and avoid privacy invasion such as questioning personal information irrelevant to the job. Job interviews need to be well structured to focus on work related questions only. Organizations should document the hiring process in detail and be able to prove a hiring decision is made solely on qualifications required for the job.

References

Aamodt, M. G. (2010). Industrial/organizational psychology: An applied approach (6th ed.). Belmont, CA: Wadsworth.

Calvasina, G. E., Calvasina, R. V., & Calvasina, E. J. (2010). Use of credit checks in employee selection: Legal and policy issues for employers. Business Studies Journal, 2(2), 87-99.

Connerley, M. L., Arvey, R. D., Gilliland, S. W., Mael, F. A., Paetzold, R. L., & Sackett, P. R. (2001). Selection in the workplace: Whose rights prevail?. Employee Responsibilities And Rights Journal, 13(1), 1-13. doi:10.1023/A:1014466023589

Giapponi, C. C., & McEvoy, S. A. (2005). The legal, ethical, and strategic implications of gender discrimination in compensation: Can the Fair Pay Act succeed where the Equal Pay Act has failed?. Journal Of Individual Employment Rights, 12(2), 137-150.

Gilbert, K. (2012). Promises and practices: Job evaluation and equal pay forty years on!. Industrial Relations Journal, 43(2), 137-151. doi:10.1111/j.1468-2338.2012.00665.x

Levy, P. E. (2010). Industrial/organizational psychology: Understanding the workplace (3rd ed.). New York, NY: Worth Publishers.

Gómez-Mejía, L. R., Balkin, D. B., & Cardy, R. L. (2012). Managing human resources (7th ed.). Upper Saddle River, NJ: Pearson.

Patton, M. T. (2013). Avoiding common job description mistakes. AMT Events, 30(3), 142-144.

Woska, W. J. (2007). Legal issues for HR professionals: Reference checking/background investigations. Public Personnel Management, 36(1), 79-89.

Appendix

Concept Map for a New Position

The Concept Map Generator was used to construct the concept map for a new position as illustrated in Figure 1. This new position is Software Programmer and its main tasks include system design and software development. Each task has multiple subtasks in a hierarchical relationship.

Concept Map for a New Position

Figure 1. Tasks and subtasks for a new Software Programmer position in a mid-sized company.