Help Wanted – Labor Shortage Makes Hiring Difficult

At a time when “Help Wanted” signs seem to be on every corner, it might be tempting for employers to hire anyone and everyone who is willing to work. After all, beggars can’t be choosers, right? It is remarkable how the shortage of workers has visibly affected so many businesses in our state.

As one personal example, I learned to my dismay one Friday evening that my favorite family-owned pizzeria now closes at 6 p.m. every evening due to lack of staff. I was shocked that a pizzeria would close in the middle of the weekend dinner rush. I thought surely the restaurant’s problem would get straightened out in a week or two, but now after several months, I have come to accept that this is the new normal.

Each of you could share your own examples, undoubtedly with more significant impacts than deprivation of late-night pizza. However, the impact on consumers pales in comparison to the effect on businesses being faced with the challenge of literally and figuratively keeping their doors open.

In these circumstances, the best practices for hiring employees could very well be at odds with a company’s immediate operational needs. For example, it would understandably be difficult to turn down a candidate because of a questionable employment application if the employer needs to fill the position to continue operating and has no other qualified applicants in sight.

Businesses should use the employment application process wisely and take the time to thoroughly review applications. Ideally, the prospective employer will check the applicant’s work references and prior employers, obtain responses to unanswered application questions, explore gaps in employment, and validate the educational background. It is important to be careful when doing background and reference checks by taking steps such as obtaining a broad authorization in advance and requesting a waiver from the applicant that releases former employers and the requesting employer from any claims relating to the reference check.

In some instances, the employer might be able to avoid bad hires by identifying poorly fitting applicants on the front end. But even if problems develop after hiring the applicant, well-executed background and reference checks might shield an employer from negligent hiring and negligent retention claims.

To avoid legal headaches down the road, employers must ensure that the pressing business need to fill job openings does not compromise a sound hiring process. For example, an employer can be held responsible for an employee’s actions, so it is important to have a sufficient degree of confidence in the candidate. Additionally, employee terminations can raise a number of legal concerns on top of being generally unenjoyable for all parties involved.

In sum, selection of employees should not be taken lightly – even amid a labor shortage and global pandemic. While it might seem like workers have evaporated into thin air, I can assure you our nation’s labor and employment laws haven’t gone anywhere.

This article first appeared in The Journal Record on December 23, 2021, and is reproduced with permission from the publisher.


Practice Area:

Labor & Employment