Job Advertising

Job Advertising

There are many ways to advertise and recruit in your search for qualified candidates. Avoid actions and language that could be interpreted as discriminatory or imply any long-term employment guarantees. When advertising a position, consider two important aspects of any proposed advertisement:

Does it comply with all state and federal discrimination laws?
Does it avoid reference to a secure contract that would contradict an at-will employment relationship?
If pictures or drawings of people compose part of an advertisement, be sure to feature a broad spectrum of typical employees, including minorities, women and people with disabilities.

Always consider discrimination laws when placing a job advertisement.

Advertisements and Employment At-Will. California’s Labor Code specifies that an employment relationship with no specified duration is presumed to be employment at-will. This means that the employer or employee can terminate the employment relationship at any time, with or without cause and with or without notice. Over the years, California courts and the Legislature have created exceptions to California’s at-will presumption. Even where you make no written or oral contract specifying the duration of employment, various factors, including employment advertisements and applications, could create an implied contract. For example, courts can find an implied contract if an employment advertisement describes a secure position or asks for candidates willing to make a long-term commitment to the organization. Avoid advertisements indicating your organization is “seeking a long-term employee” or “looking for someone who can grow with the organization.”
When hiring, you may also want to consider relationships other than regular, direct employment. These arrangements can involve personnel provided by temporary agencies or hiring independent contractors. Create these relationships carefully; otherwise, unanticipated liabilities and penalties can arise when the worker is found to have employee status rather than the desired non-employee status.

Appropriate Language in Advertisements. When drafting a help wanted advertisement, avoid language indicating limitations or exclusions on the basis of race, color, national origin, religion, sex, pregnancy, age, marital status, veteran status, sexual orientation or disability. Avoid words or phrases such as “young and energetic salesman,” “waitress,” “repairman” and “perfect for a single person willing to travel.” Replace them with “enthusiastic salesperson,” “food server,” “repair person,” and “travel required.” You can use terms such as “experienced,” as these do not discriminate against those protected by age discrimination laws. For example:

Don't use "Young and energetic salesman"...Use "Enthusiastic salesperson"
Don't use "Waitress"...Use "Food server"
Don't use "Perfect for a single person willing to travel"...Use "Travel required"

Advertising the Job Bona Fide Occupational Qualifications in Hiring. A bona fide occupational qualification (BFOQ) is a characteristic that employers are allowed to consider when making hiring decisions, even though, in other contexts, these characteristics would be considered discriminatory. For example, a religious school can require that teachers be members of the school’s religion. However, religion would not be a BFOQ for an office manager position in a dentist’s office. The words you use in a job advertisement or internal job posting can be used against you by a member of a protected class who is not selected for the position. Because many people are members of some protected class, do not use any terms that might imply a preference for or prejudice against anyone unless there is a BFOQ inherent in the job. Although extremely rare, no discrimination will be found if otherwise prohibited language is used where it identifies a BFOQ. A BFOQ based on a protected class is extremely rare. Consult legal counsel before ever listing a protected class, such as gender or religion, as a job requirement. The use of sex as a BFOQ was made even rarer when California passed a law outlawing discrimination based on gender or gender identity. The law defines “gender” as a person’s “identity, appearance or behavior, whether or not that identity, appearance or behavior is different from that traditionally associated with the person’s sex at birth.” So advertising for a male model for a men’s clothing photo shoot may no longer qualify as a BFOQ.

Affirmative Action and Advertisements. Most California employers are not required to have affirmative action programs, but for those who are, the use of illustrations depicting a diverse workforce helps increase minority applicant flow.

Advertisements and Disabilities. Employers must consider applicants with or without disabilities or perceived disabilities on an equal basis. Employers may not advertise an employment benefit in any way that may discourage applicants with disabilities from applying.