Hiring a new employee should be exciting. It means growth, new ideas, and added capacity. But from a legal and financial perspective, hiring is also one of the riskiest things a business does. Every decision, from how a job is posted to what questions are asked in an interview, can have legal consequences if handled carelessly. The goal in any hiring process is not perfection, but smarter, more defensible hiring practices that protect the business while still attracting talent.

Getting Started

Job Descriptions

Before resumes start coming in, employers should take a hard look at their job descriptions. A well-drafted job description is more than an HR document; it is a legal tool. Accurate job descriptions help identify the essential functions of a role, clarify expectations, and support compliance with disability accommodation laws.

Employers must understand minimum wage, overtime, and classification rules in drafting their job descriptions. Misclassifying employees as independent contractors remains a major enforcement focus. Errors here can lead to back pay, penalties, and audits.

As Charles Krugel of the Law Offices of Charles Krugel notes, “Job descriptions are often overlooked, but they become critical when you have to explain why someone was or wasn’t hired, or why a role was classified a certain way.”

Courts and regulators often look to job descriptions when evaluating discrimination or wage-and-hour claims, so outdated or inflated descriptions can create real problems.

Posting the Position

How and where jobs are advertised matters. Language that unintentionally signals a preference for a certain age group, gender, or background can trigger discrimination claims. Employers should focus on objective qualifications and avoid unnecessary descriptors that could be misinterpreted.

Internal posting practices matter too. Failing to post openings internally or deviating from standard procedures can lead to claims of favoritism or discrimination. Consistency is one of the strongest defenses an employer has.

Interviewing & Screening Applicants

Interviews are a common source of legal exposure. Questions that seem casual or harmless can stray into protected territory, including age, religion, national origin, disability status, or family situation.

Employers should train interviewers to focus on job-related qualifications and avoid personal topics. Even if an applicant volunteers protected information, follow-up questions can create liability.

“Even if a job applicant mentions she is pregnant, do not ask whether it will be her first child, or what she plans on doing for childcare when the baby comes, as those types of questions generally are illegal interview questions.  You can mention in response that your company has a reasonable accommodation policy for pregnancy,” advises  Helen Bloch of the Law Offices of Helen Bloch, P.C.

Salary History and Pay Transparency

Many states and cities now prohibit employers from asking applicants about prior salary. These laws are designed to prevent historical pay inequities from carrying forward.

At the same time, pay transparency laws increasingly require employers to disclose salary ranges in job postings. While this can feel uncomfortable, it often saves time by aligning expectations early in the process.

Employers can still discuss compensation expectations, just not salary history.

Social Media

Social media is now a common screening tool, but it comes with risks. Profiles often reveal protected characteristics, which can later be cited as evidence of discriminatory intent.

Best practices include limiting social media screening, using third parties, or separating the screening function from decision-makers. Some states also prohibit employers from requesting access to private social media accounts.

“The risk isn’t just what you find; it’s what you’re deemed to know once you’ve looked,” cautions Max Barack of Garfinkel Group, LLC.

Background Checks and the Fair Credit Reporting Act

Background checks can be valuable, but they are heavily regulated.

“The Fair Credit Reporting Act (FCRA) outlines very strict requirements that employers must follow if they are performing background checks on applicants. It’s important that the employer provide the notices and disclosures required by the FCRA to properly conduct the background check and avoid exposure under the FCRA,” says Katie Rinkus of the Prinz Law Firm.

This includes providing clear written notice, obtaining consent, and following specific steps before and after taking adverse action based on a report. Failure to follow these steps can result in liability even if the hiring decision itself was reasonable. A technically correct decision can still create exposure if the process wasn’t followed exactly.

Criminal History and ‘Ban-the-Box’ Laws

Many jurisdictions restrict when and how employers can inquire about criminal history. Typically, these questions must wait until after a conditional offer is made.

Even then, employers must conduct individualized assessments rather than automatic disqualifications. Factors include the nature of the offense, how long ago it occurred, and whether it is relevant to the job.

Documentation is key. Employers should be able to explain, and prove, why a conviction mattered for a specific role.

A Note About Artificial Intelligence

AI tools are increasingly used to screen resumes and evaluate candidates, but they introduce new risks. Bias in data or algorithms can result in discriminatory outcomes, even without intent.

Several states now require disclosure when AI is used in employment decisions. Employers should understand how these tools work and document oversight. AI can be efficient, but it’s not a shield from liability and can actually magnify it.

Using Restrictive Covenants

Non-disclosure, non-solicitation, and non-compete agreements are facing more scrutiny than ever before. Over the past several years, courts, state legislatures, and federal agencies have all moved in the same direction: narrowing when and how employers can restrict employee mobility.

Many states restrict or ban non-competes outright. At the federal level, regulators have openly questioned whether non-competes primarily protect legitimate business interests or instead unfairly restrict competition and worker movement.

To be enforceable, a restrictive covenant generally must protect a legitimate business interest. Courts commonly recognize interests such as protecting trade secrets, confidential information, and customer relationships. Simply wanting to limit competition or prevent an employee from leaving is not enough.

Even where a legitimate interest exists, the restriction must be reasonable. That reasonableness analysis typically looks at three things: scope, duration, and geography. Broad, one-size-fits-all restrictions that apply to every employee, regardless of role, access to sensitive information, or level of responsibility, are increasingly disfavored. Employers are expected to tailor restrictions to the specific employee and the actual risk posed.

Non-disclosure agreements tend to receive the least resistance, but even they are not immune from challenge. Courts may refuse to enforce NDAs that attempt to label everything as confidential, or that restrict information that is publicly available or generally known within an industry.

Non-solicitation agreements often fare better than non-competes, but only when they are narrowly drafted. Restrictions on soliciting customers or employees must still be tied to real business concerns and limited in duration.

Hiring Candidates With Restrictive Covenants

Hiring employers must also be careful when candidates disclose restrictive covenants with former employers. These disclosures should never be ignored or brushed aside. Reviewing the agreement, understanding which state’s law applies, and confirming expectations in writing can significantly reduce risk.

Failing to address these issues upfront can expose employers to claims of tortious interference, unfair competition, or trade secret misappropriation. Even if the employer never intended wrongdoing, courts often focus on what the employer knew, or should have known, at the time of hire.

The bottom line is that restrictive covenants still have a place, but only when used thoughtfully. Employers that rely on narrowly tailored, role-specific restrictions, and that take prior agreements seriously, are far better positioned to protect their interests without creating unnecessary legal exposure.

Key Takeaways for Employers

Smart hiring is about process, not perfection. Consistent practices, clear documentation, and early legal guidance go a long way toward reducing risk. Hiring will always involve judgment calls, but employers who approach recruiting with structure and awareness are far better positioned to defend their decisions