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Michigan municipalities continue to face significant hiring challenges. Competition with private employers, retirement-driven vacancies, shortages of qualified public-sector professionals, and persistent recruitment and retention concerns in police, fire, and EMS departments have made it increasingly difficult to fill essential positions. Despite the need to hire, hiring processes carry significant legal risk if done improperly. A single misstep in the hiring process may expose a municipality to discrimination claims, civil rights complaints, wage-and-hour disputes, and costly litigation.

Fortunately, many common hiring problems can be avoided through careful planning and a consistent process. Whether a municipality is hiring office staff, adding a firefighter, or recruiting seasonal staff, the ten guidelines addressed in this E-Letter highlight practical steps municipal officials can take to reduce legal risk, improve hiring outcomes, and build a stronger workforce.

1. Start with a Strong Job Description

A sound hiring process begins with a clear and accurate job description. Before posting a vacancy, officials should review the position’s essential functions, required qualifications, certifications, physical requirements, and performance expectations. A well-crafted job description provides the foundation for recruitment, applicant screening, interviews, performance evaluations, and disciplinary decisions, if necessary, later in the employment relationship. Job descriptions should focus on the qualifications that are truly necessary to perform the work. If the municipality cannot explain why a qualification is job-related, officials should reconsider whether it belongs in the job description. Keep in mind that job descriptions should be evaluated at least every two years because positions change over time, and if the job description lags, it loses effectiveness.

Aside from being a helpful internal guide in the hiring and evaluation processes, strong job descriptions also mitigate legal risk. For example, if the essential functions of a job and the physical requirements to complete the job are fully and accurately captured in the job description, applicants and employees have better awareness of the need for and availability of certain reasonable accommodations for disability or pregnancy. Without that clarity, a municipality is at risk of being accused of making those things up after the fact to justify a particular employment decision.

2. Recruit Broadly and Fairly

A qualified candidate may have no existing connection to the municipality. Accordingly, officials should avoid relying exclusively on word-of-mouth recruitment. Positions should instead be advertised through a reasonable combination of a municipality’s official website, social media, professional associations, and other channels suited to the position. Broad recruitment not only increases the likelihood of attracting a larger pool of qualified applicants, but it also strengthens the municipality’s ability to demonstrate that its recruitment process provided a fair and meaningful opportunity to participate.

Job postings should also be reviewed carefully to ensure they do not express or imply a preference for or against applicants based on age, sex, religion, race, national origin, disability, marital status, or any other legally protected characteristic. Even language that appears neutral may suggest that certain applicants are discouraged from applying or will not receive equal consideration. To avoid this legal risk, job postings should remain focused on the position’s duties and the qualifications, skills, certifications, and experience necessary to perform those duties.

3. Keep Job Applications Free of Legal Landmines

Similarly, employment applications may create legal exposure before an interview even occurs. Officials should review all application materials and remove questions seeking information about:

• Disabilities or medical conditions
• Prior medical treatment
• Marital status
• Childcare arrangements
• Citizenship status (other than questions related to work authorization)
• Arrest records or misdemeanor conviction records

Applications and other pre-offer materials should cast wide net without seeking to or having the effect of excluding otherwise qualified applicants because of things like disabilities or criminal history (short of relevant felony convictions). Only in exceptional circumstances can these sensitive questions actually be lawfully deployed before an offer is made.

4. Accommodate Applicants

Applicants must receive a fair opportunity to participate in the hiring process for positions, including reasonable accommodation when requested by the applicant. If a request is made, the initial evaluation of the candidate should remain focused on the applicant’s qualifications, experience, certifications, skills, and ability to perform the position’s essential functions—not on their disability or medical conditions.

Medical information should never drive the initial hiring decision. Officials should first determine whether the applicant is qualified and then address any disability-related or accommodation issues through the appropriate interactive process. Consistent treatment is essential, and accommodation should be understood as a means of providing access to the hiring process—not as a factor that weighs against the applicant’s merit.

5. Standardize Interviews

Standardized interviews are among the most effective tools for improving both hiring decisions and legal defensibility. Officials should ask each candidate a consistent set of core questions tied directly to the position’s duties, and interviews should be structured to evaluate responses against established criteria rather than based solely on personal impressions. For technical or specialized positions, a practical exercise or other job-related task may provide additional insight into a candidate’s abilities.

Officials should also consider using a brief, standardized screening interview before inviting candidates to a longer, more detailed interview. Asking each applicant the same focused questions about minimum qualifications, relevant experience, availability, and interest in the position allows officials to screen through a larger candidate pool and identify the strongest candidates sooner.

Failure to standardize the process can have legal consequences. If one applicant is subjected to questions and comments that are unrelated to the position and more onerous than those asked of other applicants, a municipality may have a difficult time justifying its hiring decision in a legally compliant matter. Officials should also standardize forms and rubrics for interviewers to fill out to assess the candidate’s credentials. Without this written documentation, a municipality will have a more difficult time explaining the hiring decision if a challenge arises.

6. Use AI Carefully

Artificial intelligence is playing an increasingly prominent role in employment decisions. AI tools may help organize applications, identify keywords in applications, manage scheduling of interviews, or assist with recruitment of qualified applicants. However, many AI systems are trained on historical data. If the underlying data used in training is based on historical hiring patterns, including demographic imbalances or prior human biases, AI may replicate those patterns. For these reasons, federal agencies, including the EEOC, DOJ, and Department of Labor have repeatedly warned all employers that the use of AI does not relieve them of their obligations under discrimination laws.

Before adopting any AI hiring tool, or before offloading hiring work to an open AI platform, officials should understand what information it uses, how it evaluates applicants, and whether it influences recommendations or final decisions. The further an AI tool moves from organizing information toward evaluating candidates, the greater the potential legal risk. Officials should maintain meaningful human oversight and use technology to support—not replace—reasoned human decision-making. Responsibility for the hiring decision will always remain with the municipality, and if a legally suspect hiring decision arises from the use of AI, the municipality, not the AI platform, will be responsible for defending that decision.

Further, unlike a private employer, a municipality should assume that materials used in the hiring process are public records subject to FOIA disclosure. Even if the law in this area develops to say otherwise, the safest approach for public bodies is to assume that anything generated or relied upon during the hiring process—either by AI or human review—may someday be reviewed by a FOIA requester, an agency investigator, or a court.

7. Timing is Everything

Be mindful that certain hiring processes are not legally permitted until after the employer has made a conditional offer to hire the individual. In other words, you cannot subject an applicant to medical testing, drug testing, or background checks until you have already determined that you will hire that individual so long as that testing does not disqualify them. Requiring a medical examination (including drug tests) too early remains a common and consequential hiring mistake. Applicants should not be required to undergo medical examinations or physical-fitness evaluations before the municipality extends a conditional offer of employment. After a conditional offer is extended, a job-related medical examination or fitness assessment may be appropriate for certain positions if it is administered consistently and in compliance with applicable law. Also keep in mind that most positions do not require pre-hire physicals or drug testing to be legally compliant. Municipalities should consider whether their pre-hire evaluation processes are streamlining or derailing their pipelines for qualified candidates.

8. Handle Background Checks Correctly

Background checks can provide valuable information, but they also carry distinct legal requirements. For example, when a municipality uses a third-party screening company to carry out its background checks, townships must:

• First extend a conditional offer
• Obtain written authorization to complete the background check from the applicant
• Provide required Fair Credit Reporting Act disclosures
• Evaluate results individually
• Avoid blanket disqualifications
• Follow required adverse-action procedures before rescinding offers

Further, a criminal conviction should not automatically disqualify an applicant. Instead, officials should consider the nature and seriousness of the reported conduct, the time that has elapsed since the conviction occurred, and whether the conviction relates to the duties of the open position. For example, a recent theft conviction may raise legitimate concerns for a position entrusted with public funds, while an older conviction for driving with a suspended license may have little bearing on an applicant’s ability to serve. This position-specific analysis is more appropriate and legally defensible than a blanket policy excluding every applicant with a criminal record.

9. Document Your Hiring Decisions

Retaining hiring records is one of the most effective ways a municipality can reduce legal risk and support its hiring decisions. Interview notes, scoring sheets, reference-check records, and other related materials can document whether a municipality used objective, job-related criteria to compare candidates. These records can also help municipalities explain why one candidate was selected over another and show that the decision was based on merit rather than subjective impressions or personal preferences.

Documentation is particularly important when an applicant alleges discrimination or challenges the fairness of the selection process. A complete hiring file can demonstrate that the municipality applied the same process and criteria to each applicant and ultimately selected the applicant best suited for the position. If the decision is later challenged, those records provide support to show that a municipality’s decision was consistent and job-related, and therefore defensible.

10. Remember That Hiring Is Only the Beginning

The hiring process does not end when a candidate accepts the position. In a difficult labor market, the strongest recruitment strategy is often an effective retention strategy. Finding qualified employees is challenging; but losing them shortly after hiring can be even more costly. Municipalities should invest in:

• Effective onboarding
• Clear performance expectations
• Professional development
• Succession planning
• Workplace culture
• Mental health and wellness support
• Recognition and engagement initiatives

Employees who feel supported are more likely to remain.

Practical Takeaways: A Hiring Checklist

Before posting the municipality’s next position, officials should consider the following:

✓ Is the job description current?

✓ Are the qualifications truly necessary?

✓ Are the application materials legally compliant?

✓ Are interview questions standardized and job-related?

✓ Have accommodation procedures been considered?

✓ Is AI being used appropriately, if at all?

✓ How will background checks be handled correctly?

✓ What documentation will be utilized and retained?

✓ Do we have retention goals?

Municipalities that approach hiring strategically and consistently are better positioned to reduce legal risk, improve recruitment outcomes, and develop a workforce capable of serving residents for years to come. When unusual issues arise, officials should consult with legal counsel before making significant employment decisions because thoughtful guidance at the beginning of the process may help prevent costly disputes later.

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.

By: Janelle Orange and Chad Karsten