3 Legal Traps to Avoid When Recruiting Physicians

Recruiters need to be aware of many legal rules when recruiting physicians and other medical professionals.  Lack of intent or knowledge is not a defense so protect yourself from these three legal traps.

Discriminatory job postings.  The language in your job postings should avoid a preference for or against a physician’s race, color, religion, sex, national origin, age, genetic information, or citizenship status. Scrutinize your ad carefully.  You may imply bias without even realizing it. For example, an ad that says “ideal location for a young family” could be construed as discriminating against physicians over age 40.

Explicit national origin discrimination is often found in job postings as many employers mistakenly believe they can limit the job pool to U.S citizens.   It’s just the opposite. You cannot require applicants to be U.S. citizens unless the position requires it (which is rare for medical positions).  The following language in job postings is generally prohibited:

  • “Only U.S. Citizens”
  • “Citizenship requirement”*
  • “Only U.S. Citizens or Green Card Holders”
  • “H-1Bs Only”
  • “Must have a U.S. Passport”
  • “Must have a green card”

Your advertisements should also state that the employer is an Equal Opportunity Employer, and that nothing in the job posting guarantees employment.  Beyond federal laws, it’s important to check state laws where the physician will work.  Some states protect against discrimination based on sexual orientation, criminal history, political affiliations and other factors. Also, state laws can affect businesses with fewer employees than federal laws (which generally apply to employers with 15 or more employees).

Data privacy protection.  On May 25, 2018, the General Data Protection Regulation (GDPR) went into effect.  If you recruit physicians or other medical professionals who reside in the European Union, then GDPR could change how you engage with EU candidates.  To be compliant and avoid potential fines and penalties, you may need to learn about GDPR requirements that pertain to recruiting and data collection:

  • You must ask the candidate’s consent if you require sensitive data like cultural and genetic information.
  • You must disclose information required by the GDPR.
  • Within one month, you must comply with a candidate’s demand to delete their own data from your systems.
  • Within one month, you must comply with a candidate’s demand to access their own data from your systems.
  • You must have processes to properly inform candidates that you and your clients comply with GDPR.

Your recruiting business might be subject to data protection laws in the U.S. as well.  As of March 2018, all 50 U.S. states, as well as the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands, have passed breach notification laws requiring businesses to inform consumers (which can include job candidates) if their personal information is compromised. It’s critical that your business takes necessary precautions to protect data theft and properly inform clients and candidates should those efforts fail.

Verifying employment eligibility.  Employers are required to verify the identity and employment eligibility of all employees by completing the Employment Eligibility Verification (I-9) Form. However, employers can’t be overzealous in this process and end up committing immigration discrimination.  As you recruit providers, particularly those who are foreign born, avoid requesting proof of work authorization. Federal law prohibits employers from conducting the Form I-9 process before the candidate has accepted an offer of employment.   You can and should inform candidates that “[i[n compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification form upon hire.”

Also, you should avoid asking candidates whether they have a green card or other specific employment authorization documents before, during, and after the recruitment process.  Doing so could violate anti-discrimination laws.

Laws are constantly changing, so make sure to stay up to date on legal topics described in this article and others relevant to recruiting professionals.  If you have specific questions as to the application of these laws to your activities, you should seek the advice of legal counsel.

This article provides general information on pertinent legal topics and are provided for educational purposes only. It is not intended to create an attorney-client relationship between you and Scheef & Stone LLP.  For solid advice about legal challenges for your recruiting business,  you are invited to call me at 214-472-2161 or email ann.badmus@solidcounsel.com

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