Every owner knows the moment: the phone rings through lunch, the backlog grows teeth, and a new hire starts to sound like a cure. Sometimes it is. Sometimes it is a busy month wearing a costume. Before the job ad goes up, sort out whether you want to hire or need to hire, then check that you are ready to hire an employee well, because a good candidate can only win a fair contest.
Want to hire or need to hire?
| Signal | Sounds like want | Sounds like need |
|---|---|---|
| The workload | A slammed few weeks you expect to pass | The same overflow, month after month |
| Who covers it now | You, a little later every night | Nobody, and customers notice |
| The job itself | "Extra hands," loosely defined | Tasks you can list and measure |
| The money | Hoping the hire pays for itself | Revenue already carries the wage |
| Other fixes | A schedule change could solve it | Only another person solves it |
Mostly want: try the schedule or process fix first and revisit in a quarter. Mostly need: keep reading, because need is the reason and readiness is the method.
Are you ready to hire a good candidate?
You are ready when you can say yes to all five:
- A role scorecard names the outcomes, skills and evidence that define success in this job.
- Every candidate gets a structured interview: the same job related questions, scored against the same evidence.
- Any test or screen measures something the job actually requires.
- You know which discrimination laws cover your headcount.
- You have one place to keep applications, notes and scores.
The first two are good management rather than law. They also make the last three far easier to prove.
Which hiring discrimination laws cover a small Texas shop?
Coverage turns on headcount, and it comes in two layers. Federally, Title VII and the ADA cover employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. The ADEA, which protects workers 40 and older, uses the same rule at 20 employees. In Texas, Chapter 21 of the Texas Labor Code draws its line at 15 employees over 20 calendar weeks too.
Coverage lines: federal and Texas discrimination laws by headcount
| Law | Layer | Covers employers with |
|---|---|---|
| Title VII of the Civil Rights Act | Federal | 15 or more employees for each working day in 20 or more calendar weeks |
| Americans with Disabilities Act | Federal | 15 or more employees for each working day in 20 or more calendar weeks |
| Age Discrimination in Employment Act | Federal | 20 or more employees for each working day in 20 or more calendar weeks |
| Texas Labor Code Chapter 21 | Texas | 15 or more employees for each working day in 20 or more calendar weeks |
Part-time employees count: EEOC guidance counts someone who works only Mondays and Wednesdays as an employee for the whole week, and the 20 weeks need not be consecutive. Independent contractors do not count. Sitting under a line is not a free pass, since other laws can still apply, so ask an employment lawyer before leaning on a headcount.
Do hiring tests and screens have to be job related?
For covered employers, yes. The EEOC says Title VII permits employment tests as long as they are not "designed, intended or used to discriminate," and it bars neutral tests that disproportionately exclude people by race, color, religion, sex or national origin unless the test is "job-related and consistent with business necessity." That idea is older than most shop trucks.
"The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation."
Chief Justice Warren E. Burger, U.S. Supreme Court, writing for the Court in Griggs v. Duke Power Co. (1971), as published by Cornell Legal Information Institute
Common hiring screens and what federal guidance says about each
| Screen | What it measures | What to watch |
|---|---|---|
| Cognitive tests | Reasoning, memory, arithmetic, reading comprehension, job knowledge | Must not disproportionately exclude a protected group unless job related and consistent with business necessity |
| Physical ability tests | Strength and stamina for a particular task | Tie the test to the physical work the job really involves |
| Sample job tasks | Work samples, simulations, realistic job previews | Build them from tasks the job actually requires |
| Medical questions and exams, including psychological tests | Physical or mental health | Under the ADA, none before a conditional job offer; after the offer, only if asked of everyone entering the same job category |
| Personality and integrity tests | Traits such as dependability, cooperativeness and safety | Know what the tool measures and why this job needs it |
| Criminal background and credit checks | Arrest, conviction, credit and financial history | Administer the same way for every candidate, and get legal advice on the policy |
Two cautionary tales from EEOC cases
In EEOC v. Dial Corp., a strength test for entry-level production jobs dropped women from 46% of hires to 15%. In EEOC v. Ford Motor Co., a cognitive test validated in 1991 kept excluding African American apprenticeship applicants after less discriminatory options were developed, and Ford paid $8.55 million in monetary relief. The EEOC is plain about store-bought tests: a vendor's validity paperwork helps, but the employer is still responsible for making sure its tests are valid.
Keep the paper from every hire
Federal regulations require covered employers to keep application forms and other hiring records for one year from the date the record was made or the personnel action, whichever is later. Texas adds its own line: keep personnel records at least one year after an employee's last day, and wage and unemployment tax records at least four years. The Texas Workforce Commission goes further as advice rather than law: keep solicited applications four years, long enough to outlast the time limits on employment claims, and the hired person's application seven. Scorecards and interview notes are easy to keep when they already live in one folder. Once the right person says yes, an offer letter and planned onboarding carry a good hire past the first week.
This guide is general guidance, not legal advice. If a candidate raises discrimination, or you plan a medical, credit or background screen, talk to an employment lawyer first. To build the scorecard and interview kit together, ask Jennifer to rebuild one role's hiring, read how to hire well and keep people, or take the four question checkup.
Frequently Asked Questions
How do I know if I really need to hire an employee?
Look for a pattern rather than a rush. The same overflow returns month after month, you can list the tasks the new person would own, revenue already covers the wage, and no schedule or process change fixes it. If only one or two of those are true, it may be a want.
Do EEOC hiring rules apply to a small business?
It depends on headcount. Title VII and the ADA cover employers with 15 or more employees for each working day in 20 or more calendar weeks in the current or preceding calendar year, and the ADEA applies at 20. Texas Labor Code Chapter 21 uses the same 15 employee line. Part-time employees count.
Can I ask a job applicant about medical conditions?
Not before a job offer, if the ADA covers you. An employer may not ask disability-related questions or require medical exams until after a conditional job offer, and then only if it does so for everyone entering the same job category.
How long should I keep job applications?
Federal law sets the floor: covered employers must keep application forms and other hiring records for one year from the date the record was made or the personnel action, whichever is later. For Texas employers, the Texas Workforce Commission recommends keeping solicited applications four years and the hired person's application seven, to outlast the time limits on employment claims.
About Getting Ready to Hire
- EEOC, Employment Tests and Selection Procedures: which screens are covered and the employer best practices
- EEOC, Small Business Requirements: what applies at 15 and at 20 employees
- Texas Workforce Commission, Thresholds for Coverage: federal and Texas headcount lines side by side
- Texas Workforce Commission, Job Applications: how long to keep them and why
Sources: EEOC, Employment Tests and Selection Procedures, EEOC, Small Business Requirements, EEOC Compliance Manual, Section 2: Threshold Issues, Texas Workforce Commission, Thresholds for Coverage Under Employment-Related Laws, 29 CFR 1602.14, Texas Workforce Commission, General Recordkeeping Requirements, Texas Workforce Commission, Job Applications, Griggs v. Duke Power Co., 401 U.S. 424 (1971)