Small fleets looking to expand can be tripped up by the legalities of federal hiring laws
Congratulations, you’ve successfully managed your independent trucking company and now it is time to expand. You’re looking to add a few drivers to your company, maybe a dispatcher or other office support staff. This stroke of luck is happening because you’ve successfully managed your cash flow and have built a solid business. You’ve been able to keep costs low through the use of free and lower-priced software products and have utilized a factoring company to ensure you get paid quickly and regularly for loads. It’s also freed up more time for you to haul loads instead of chasing down shippers who are slow to pay.
Because of all this hard work and attention to detail, shippers have noticed and the opportunity is now before you to go from a single-truck operation to a small fleet of five trucks. You’ve got financing lined up (if you are buying trucks) or maybe you’ll be bringing on contractors. Either way, the next big step is upon you: hiring personnel.
Few people look at the hiring process as a cash flow situation, but it does have an impact. From setting salaries and choosing the benefit packages to offer, every decision you make will affect your cash flow. There is an overlooked aspect to this as well – hiring the right people.
Not everyone can do the job you need them to do and it’s important that you choose the right people for the positions you have. Even at five trucks, you’re still a small trucking operation and you don’t want to be looking for another driver in a month because you made a bad hire. There is cost to recruiting, hiring and onboarding a new driver and it is a negative cost on cash flow, especially for a small fleet.
Before you make that hire, though, it’s important to understand the laws surrounding the hiring process, particularly when it comes to discrimination practices. The last thing you want is to hire a bad employee who then files a complaint against you, forcing you to tie up time and money with lawyers to defend your operation.
There is another potential hidden cost if you are sued for discriminatory practices: You could lose your customers who decide they don’t want to be associated with a trucking fleet facing allegations of wrong-doing.
The U.S. Equal Employment Opportunity Commission (EEOC) provides guidance on how employers should proceed during the interview process. The EEOC has come under fire for its aggressive approach in going after employers alleged to have violated employee rights, but the agency’s list of best practices remains a vital tool to ensuring you protect yourself from unnecessary litigation that cuts into your revenue.
Most people understand the basic tenet of hiring – you can’t discriminate against potential employers. But, do you know how to write a job ad? Do you know what questions you can and can’t ask on an application?
Starting with the job advertisement, “It is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.”
The same basic rules apply to recruitment practices and throughout the application and hiring process. EEOC advises avoiding any questions on the application form or in the hiring interview that could identify any of the mentioned criteria.
While it is not necessarily illegal to ask a question related to these topics, EEOC suggests avoiding the question altogether provides a basis to defend yourself if necessary. Asking of the question makes the process of defending yourself against a claim more difficult.
“In general, it is assumed that pre-employment requests for information will form the basis for hiring decisions,” EEOC says. “Therefore, employers should not request information that discloses or tends to disclose an applicant's race unless it has a legitimate business need for such information. If an employer legitimately needs information about its employees' or applicants' race for affirmative action purposes and/or to track applicant flow, it may obtain the necessary information and simultaneously guard against discriminatory selection by using a mechanism, such as ‘tear-off’ sheets. This allows the employer to separate the race-related information from the information used to determine if a person is qualified for the job. Asking for race-related information on the telephone could probably never be justified.”
To note, several states have now made it illegal to ask about a previous salary, so be sure to know your state’s rules.
The EEOC also provides guidance on a number of other topics, including height and weight-based discrimination, financial information, background checks, religious affiliation, marital status and more.
“Although state and federal equal opportunity laws do not clearly forbid employers from making pre-employment inquiries that relate to, or disproportionately screen out members based on race, color, sex, national origin, religion, or age, such inquiries may be used as evidence of an employer's intent to discriminate unless the questions asked can be justified by some business purpose,” EEOC says. “Therefore, inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member or any other questions, which may indicate the applicant's race, sex, national origin, disability status, age, religion, color or ancestry if answered, should generally be avoided.”
The full list of advice runs for many pages on EEOC’s website, but for any small trucking fleet or owner-operator looking to hire a new employee, it can be a vital tool to avoiding costly litigation.
Consider this: You may not like what the EEOC has to say in the matter, but if you violate one of their basic tenets to hiring, and a complaint is filed, it’s likely going to involve the EEOC. A best practice may simply be following their procedures from the start.
The entire guidance can be found at https://www.eeoc.gov/laws/practices/index.cfm.
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