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9 Legal Mistakes Employers Make In The Hiring Process

Aleksandra Jacimovic

Aleksandra Jaćimović

Senior Associate

27/12/2023

There is no second chance to make a good first impression.

In order to attract quality job candidates who will become reliable and dedicated team members, the branding you develop as an employer must communicate the highest level of professionalism and compliance with regulations.

For that reason, this time we focused on the most common mistakes employers make in the process of searching for and hiring a new team member.

 

1. Lack of informing employees before the application process

Frequently overlooked is the communication with employees preceding the job application and interview process, which can be crucial for building trust between the employer and the prospective employee.

Employees will often make the decision to apply for a job with your company after visiting your website, based on the impression and user experience they have as website visitors, even before seeing the terms of employment.

Therefore, the terms of use and privacy policy must be clearly and transparently formulated, which will for sure leave a professional impression on job candidates and solidify their decision to apply with your company.

What can further motivate candidates is a transparent explanation of the selection process, allowing them to know what to expect and engage in.

Informing candidates about the processing of their data during the selection process is a crucial obligation that must be fulfilled in accordance with personal data protection regulations. Moreover, it contributes to even greater transparency of the entire process, as candidates can always be aware of how you handle their data, for what purposes, with whom you share it, and for how long you retain it.

The information accessibility to job candidates is a crucial prerequisite for conducting the selection and employment process in a professional manner.

 

2. The intrusive employee background check

The uncertainty among employers raises also a question of what can and cannot be the subject of an employee background check, and we have noticed common mistakes made by employers on this matter.

Generally, this is one of the questions where different legal systems often collide. For instance, rules in the USA are more liberal and provide a lower degree of privacy protection compared to those in the EU, including Serbia.

Therefore, it is sometimes challenging to explain to foreign companies wishing to operate in Serbia that the legality of employee background checks is limited in Serbia and the EU.

Besides that, many domestic companies providing services to foreign clients have contractual obligations to conduct a background check on their employees who will be engaged in client projects. Unfortunately, local companies often fail to consider whether such employee checks are even permitted and agree to this contractual obligation. However, when the time comes to conduct the employee checks, problems arise, and the local company must choose between violating the contract with the client or violating the rights of the employees.

According to the domestic Law on Personal Data Protection, every data processing must be based on a legal basis and must have a specific purpose. If these conditions are not met, the processing is not lawful.

Therefore, for an employee background check, you should ask yourself both questions – what is the legal basis for the processing, and what is the purpose? Different answers lead to different solutions.

Besides that, if the processing is done at the request of a foreign client, it would be advisable to check what is included in the term “background check.” Experience has shown us that this procedure usually involves several different checks, such as checking the employee’s criminal record, creditworthiness, reference checks, identity verification, qualification and education data verification, and similar.

In any case, you must be extremely careful when conducting such procedures, as during this data processing, you may come into possession of particularly sensitive data (such as data on criminal convictions), which enjoy a special level of protection, and their processing is allowed only in exceptional situations.

 

3. Asking inappropriate questions to employees

When a candidate applies for a job, goes through the specified selection rounds, and finally reaches the live/online job interview, employers have a dilemma regarding what questions are permissible and advisable to ask job candidates.

It is prohibited to ask questions related to family and marital life, especially those concerning family planning and conditioning employment on a pregnancy test. This would only be allowed if a female candidate is applying for a job with a significant risk to her health and the health of the child, and only if it is determined by the competent health authority, not based on the employer’s assessment.

In order to protect the rights of job candidates and prevent discrimination, in accordance with the provisions of the Law on the Prohibition of Discrimination, questions related to individual personal characteristics such as age, religious affiliation, political affiliation, etc., are not allowed, as they cannot be a condition for establishing an employment relationship.

On the other hand, a general piece of advice would be to focus on professional questions related to the candidate’s knowledge, skills, experience, and abilities regarding the job they have applied for. This way, the integrity of the hiring process is best preserved.

 

4. (Im)balance in diversities: gender and other (in)equalities

Building teams with diverse employee structures is a source of creativity, innovation, new ideas, perspectives, and increased productivity if managed correctly. In the modern business environment, this is precisely one of the components for boosting productivity and ultimately providing better service to clients or end consumers.

A common mistake employers make is not communicating transparently enough with job candidates to foster a culture of equal opportunities for all employees. This oversight may lead them to miss out on some excellent candidates who could become valuable assets to their teams.

In order to convince job candidates that you foster a culture of respect and diversity, present them with statistical data regarding the gender and age structure of your employees, the representation of national minorities among your staff, and similar information.

An additional piece of advice would be to present in the job advertisement that you actively encourage diversity and foster an inclusive environment. Explicitly mention that you adhere to an anti-discrimination policy by emphasizing that all candidates meeting the job criteria are welcome, regardless of their age, gender, religious affiliation, political or union preferences, and similar factors.

One measure aimed at ensuring equal treatment of women and men in the field of work, employment, and self-employment, as well as fostering a policy of equal opportunities, was the adoption of the Gender Equality Law.

While the government, ministries, and the Coordination Body for Gender Equality are primarily responsible for creating, implementing, monitoring, and improving policies to achieve gender equality, we believe that certain types of action must also originate at the local level, i.e., from each specific employer.

In this regard, the Gender Equality Law stipulates that employers with more than 50 employees and engaged workers are obliged to establish and implement specific measures and adopt appropriate policies and documents for the implementation of these measures.

Do not miss the opportunity to inform job candidates about the measures you apply regarding gender equality and other anti-discrimination measures.

 

5. Failure to offer the application form to candidates

A useful tool in the selection process by some employers is having job candidates fill out an application form.

In practice, we have observed numerous advantages of using an application form, and some of them include:

  • „Filtering“ of the candidates– Based on the application form containing all necessary information in one place, you can decide whether a candidate will make it to the shortlist or not.
  • All in one place– You will receive and have all relevant information in one place, making it easier to draft employment contracts and other necessary documentation when establishing an employment relationship.
  • Predictability – The selection process will be standardized.
  • Evidence in case of a dispute – The candidate is responsible for the accuracy of the data provided when establishing an employment relationship, especially regarding meeting the job requirements. Therefore, the application form with the candidate’s self-filled data can serve as evidence in case of a dispute about the candidate’s information.

 

Because of these, among other advantages, we would recommend considering the introduction of an application form into the selection process.

 

6. Unclear definition of the job offer

If a job offer is not clearly and precisely defined, the candidate may not understand the criteria or conditions for employment, and there is a high likelihood of losing interest.

The job offer should be unambiguously and concisely formulated to make it clear to the candidate what employment conditions you are offering. Besides that, it has proven to be good practice to mention additional benefits that your company provides to employees, which can serve as an additional reason for the candidate to accept the offer.

Depending on the complexity of the tasks for the position the candidate applied for, their professional qualifications, and previous work experience, you may consider specifying a probationary period in the employment contract with the candidate.

The Labor Law in Serbia allows for the possibility of specifying a probationary period in the employment contract for the performance of one or more related or similar tasks stipulated in the employment contract.

It is essential to clearly communicate to the candidate the duration of the probationary period, your expectations during the probationary period, and the consequences of not achieving the expected results.

 

7. Lack of new employee onboarding

You’ve sent an offer to the candidate and received a positive response. Congratulations!

Now the question is whether you can ask the candidate to fulfill certain obligations before their first working day in the context of employee onboarding.

Employers often neglect to adequately conduct the onboarding process, resulting in employees being unprepared for the start of work and unfamiliar with company procedures upon entering the job.

During the onboarding process, it might be useful to gather additional information from the candidate necessary for preparing employment documentation, providing work equipment, and addressing equipment usage issues, among other things.

Additionally, this period can be utilized to reiterate the company’s culture and values to the new employees, allowing them to become acquainted with the company’s basic policies and operational rules.

From numerous practical cases, we observe that adequately preparing an employee for the start of work through a well-planned onboarding process is crucial for a professional relationship between the employer and the employee, as well as for the employee’s overall professional approach to future work. Therefore, ensure that this process is properly implemented and standardized.

 

8. Using a basic and improper employment agreement

The disputes between employers and employees, both outside and inside the court, testify to the inadvisability of using employment contract templates available on the Internet.

Publicly available templates often lack even the essential elements defined by labor law, and additionally, they do not regulate crucial matters related to protecting employers’ interests, such as intellectual property protection, non-competition, confidential information, equipment usage regulations, employee training, and more.

Furthermore, before signing an employment contract, the employer should familiarize themselves with the possibilities of termination in accordance with Serbian labor law regulations.

A question often received from clients in the USA is whether Serbia recognizes the concept of at-will employment, i.e., the freedom of both the employer and the employee to unilaterally terminate the employment relationship at any time for any reason, except if the reason is discriminatory.

This question is particularly significant in the context of planning collaboration with candidates and understanding potential exits from partnerships that do not yield expected results.

Unlike some U.S. states, Serbia does not recognize such employment and termination concepts. Instead, the law provides grounds for the termination of employment, as well as grounds for termination by either the employee or the employer.

Termination by the employer, whether based on the employee’s performance, violation of work obligations, lack of discipline, or employer needs, must be justified, reasonable, and used as a last resort. This is especially important considering the legal consequences of an unlawful termination of an employment contract.

Due to all these factors, a well-drafted employment contract is a fundamental component of “labor law prevention,” tailored to the circumstances of each specific case, ensuring clarity and transparency between the employer and the employee. When drafting an employment contract, it is essential to consider the industry in which the employer operates, the characteristics of the employer’s products or services, and similar factors.

 

9. Failure to conclude a comprehensive confidentiality agreement

The issue of confidentiality and the protection of confidential information have become crucial, given that information represents a real value in modern society.

Although it seems that everyone is aware of this today, some employers still fail to adequately protect their confidential information and conclude a confidentiality agreement with employees.

Our experience working with companies, especially those in the IT sector, has shown that entering into a specific Non-Disclosure Agreement (NDA) is as important and beneficial as concluding the employment contract itself.

If employers do not take care to protect confidential information and do not address this issue properly, even the law will not provide them with legal protection. Therefore, it is of invaluable importance to take key steps in protecting your confidential information and business secrets when establishing an employment relationship.

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