Article contributed by Jen Calamia, Ellenoff Grossman & Schole LLP
As the new year unfolds, it brings the anticipation of new hires and heightened activity among the hospitality industry gearing up for the bustling spring and summer seasons. But with the promise of busy season comes a looming concern: the widespread labor shortage.
Despite offering competitive wages and benefits, the hospitality industry’s struggle to adequately staff its establishments has become an enduring hurdle. In response, employers have been forced to seek out alternative methods and innovative avenues, leveraging the digital realm to engage potential talent.
Online recruitment websites such as Indeed and LinkedIn, as well as industry specific websites such as Hcareers, Hospitality Online, HMG+ and Culinary Agents have ushered in an era of increased efficiency, enabling employers to cast a wider net and reach candidates that it would not otherwise have access to.
However, while online recruiting offers numerous benefits, it also presents a unique set of legal challenges that employers must learn to navigate.
This article highlights a few hot topics in the legal world that employers should be mindful of when engaging in online recruitment of employees.
Table of Contents
Pay Transparency:
One of the notable legal developments impacting online employment recruitment are pay transparency laws.
States such as California, Connecticut, New York, as well as certain cities in New Jersey, now require employers to disclose salary data during the hiring and application process. Many of these laws extend to individuals who are not yet your employees, as they protect prospective employees and applicants.
For example, New York’s Pay Transparency Act requires that the compensation, or a range of compensation for the position and the job description for the position be included in the advertisement.
In Nevada, employers must disclose the salary range to applicants who have completed an interview for the position. Other states, like Connecticut, require employers to provide salary range information to applicants by the time they extend an offer of compensation.
Employers should proactively review and update their job advertisement practices, ensuring that salary information is presented in accordance with the specific requirements of the relevant state or city.
Use of Automated Tools:
Some states are now regulating employers’ use of automated employment decision tools (AEDTs) or artificial intelligence (AI) programs and software in the hiring process. For example, New York City requires that employers utilizing AEDT conduct a bias audit and provide certain required notices.
Other laws, like Illinois’ Artificial Intelligence Video Interview Act (AIVIA), regulate employer use of AI in video interviewing, including informed consent of applicants, video distribution and destruction, and reporting requirements.
Employers should be mindful that AEDTs and AI are new, developing technology and as such, they should expect to see additional states regulate their use as it becomes more prevalent.
Employers should also be mindful that their use of such tools results in fair, non-discriminatory hiring practices.
For example, automated tools which filter for certain experience could inadvertently result in automatically filtering out certain characteristics (such as age) which may be protected under anti-discrimination laws.
Data Privacy and Security:
Online recruitment involves the collection and storage of sensitive personal information. Employers should prioritize data privacy and security and be aware of any notice requirements to comply with relevant laws.
For example, the California Privacy Rights Act (CPRA) requires employers to inform individuals about the employment-related personal information collected by the employer and how that data is used.
Information covered by the CPRA includes an individual’s personal information including address and social security number, racial or ethnical origin, membership in a union, or biometric information.
Implementing secure online application platforms and establishing clear data protection policies is essential.
Employers should regularly review and update their data protection policies, ensuring alignment with current privacy laws.
This includes providing clear information to applicants about data collection practices, obtaining necessary consents, and implementing robust security measures to protect applicant information.
Regular training for HR personnel involved in the recruitment process can further strengthen an organization’s commitment to data privacy and security.
Accessibility Compliance:
Websites and platforms used for online recruitment must comply with accessibility standards outlined in the Americans with Disabilities Act (ADA). Employers should conduct regular accessibility audits of their online recruitment platforms.
This involves testing the website or platform with various assistive technologies to identify and address potential barriers to access.
Additionally, providing clear instructions for applicants on how to request accommodations and promptly addressing accessibility issues as they arise will help organizations maintain compliance with ADA standards.
Ensuring that online content is accessible to individuals with disabilities, including those using screen readers, is critical to avoiding potential legal consequences.
As the industry embraces the digital age for recruitment, understanding and addressing the legal challenges associated with online hiring is paramount.
From compliance with state-specific laws to fostering diversity and inclusion, restaurant employers must prioritize creating fair and transparent online recruitment processes.
By staying informed about legal developments, implementing best practices, and leveraging technology responsibly, restaurants can attract top talent while mitigating legal risks in the dynamic landscape of hiring in the digital age.
As we enter the new year, a proactive approach to legal compliance in online recruitment will not only enhance the reputation of restaurants but also contribute to building a resilient and thriving workforce.
Jen Calamia is an associate in Ellenoff Grossman & Schole LLP’s Labor & Employment Practice Group.
Ms. Calamia represents employers in arbitrations, administrative proceedings and state and federal litigation in all manner of employment disputes including wage and hour claims, allegations of discrimination, retaliation, hostile work environment and sexual harassment.
Ms. Calamia also regularly advises employers on multi-state employment policies, industry-specific regulations and compliance with all federal, state and local employment laws.
In addition to her practice, Ms. Calamia serves as an adjunct professor at Hofstra University School of Law where she teaches a course on advanced appellate advocacy skills. Ms. Calamia can be reached at (212) 370-1300 or jcalamia@egsllp.com
