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Davis Brown Employment and Labor Law Blog



High Speed Hiring: The Importance of Anti-Discrimination Practices in Online Employment Advertising - July 29, 2016

This post was written by summer associate, Katelynn McCollough and edited by Labor and Employment Department Chair, Jo Ellen Whitney.  

 

There are currently more than 1 billion websites accessible to the world by just the click of a mouse or the swipe of a phone screen. The Internet has become a major part of more than 3 billion active users everyday lives, with people hopping online to connect with friends, send an email for work, and even find a job. With this type of 24/7 access, businesses have the potential to connect with an immense number of individuals, often with minimal costs and effort.

 

More and more, employers are investing in highly-functional web pages that tout their successes in the hopes of netting coveted employees on the search for their next career. But, in the attempt to make a website more attractive and navigable, it can be easy to forget that there are essential items that must appear on your website. An employer’s online presence must remain compliant with state and federal laws pertaining to equal opportunity employment.

 

Equal Opportunity Employer

Not all employers are covered by the laws and regulations enforced by the Equal Employment Opportunity Commission (“EEOC”). However, those that are covered must take care in launching websites that are compliant with state and federal laws.

 

An employer advertising an open position must consider and follow the same requirements that would apply if the advertisement for employment appeared in hard copy form. Online employment advertisements must not be formatted in any way that would appear to discriminate on the basis of race, creed, color, religion, sex, sexual orientation, gender identity, national origin, age, disability, veteran status, or genetic information.

 

Employers commonly forget to add the term “Equal Opportunity Employer” to their online websites and employment advertisements. This language gives prospective employees notice that the employer has agreed to refrain from discriminatory practices in their hiring. Plus, adding the three word phrase to any online platform should be an easy task. An employer’s main web page, or any subsequent page that specifically relates to employee recruitment, are two areas an employer should update their website to include the “Equal Opportunity Employer” language.

 

Accessible Drug and Alcohol Testing Policy

The state of Iowa requires that employers retain a written drug and alcohol testing policy that a prospective employee can readily review. While it should be easy to quickly proffer a hard copy of the policy to a prospective employee who applies in person, the online applicant must also be capable of accessing the document. Luckily, as with the “Equal Opportunity Employer” requirements addressed above, this is an easy issue to rectify if your website is not in compliance.

 

An employer may create a link within the website that will lead to a posting of the policy on a separate page. The policy can be also converted to a PDF and available for the prospective employee to download.

 

It is equally important to note that the Iowa Code requires further steps for applicants who are minors. In these cases, the employer must also provide a copy of the drug and alcohol testing policy to the minor’s parent. The employer then must “obtain a receipt or acknowledgment from the parent that a copy of the policy has been received.” One traditional way to meet this requirement is to mail the policy to the minor applicant’s parent and request a return receipt.

 

Again, online applications must still meet this requirement. If the employer requires that an online applicant mail in the completed application, then it is important that the website clearly states that a parent must review the drug and alcohol testing policy. A link should be provided that allows the minor to download a form that the parent can fill out and then return with the other application materials.

 

On the other hand, if the application can be submitted via an online portal, then the employer could meet this requirement several other ways. For example, the employer could once again provide a link for a downloadable form, which the applicant can then scan and submit. Or, the online application could require an online signature from the parent stating they have reviewed the policy before the application can be fully submitted.

 

Retention of Records

Many businesses might see very different levels of traffic and responses to online employment portals. But, whether your website is inundated with unique online visitors and submitted applications or just beginning to pull in web traffic, it is important to retain online applications and records of job postings.  

 

Various federal laws, including Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, create requirements for the retention of application documents. These laws currently require an employer to retain pertinent documents for at least one year, beginning on the date the hiring decision was made. However, employers should carefully consider retaining applications, resumes, applicant drug tests, and background checks for a longer period, even potentially up to three years.

 

Application materials received through an online portal must be kept for these same lengths of time. Employers would also be wise to preserve copies of screenshots or PDFs of their web pages that relate to employment or contain job postings. Maintaining a record of the layout of the web page, including the wording of any online job posting, may help an employer protect themselves against future charges of discriminatory hiring practices.

 

Reality in the Online World

The online world can often feel more like fiction than reality, but it’s important for employers to remember that the state and federal laws encompass these online platforms. Luckily, remaining compliant in your online employment advertising involves nothing more than a few clicks of the mouse.