A. Advertisements and Brochures

There are many problems employers should be concerned with when drafting advertisements and brochures.

1. Avoid using descriptions implying that the job is secure (i.e., words such as "long-term growth," "permanent," "secure," or "career path"). Such words may create an inference that the employee was hired in a manner other than at-will. If this were the case your company might have difficulty firing the employee suddenly, without notice or cause, because the employee could argue that he/she could not be fired without a warning or unless there was a good reason (e.g., fighting or sleeping on the job). Use of words such as "full-time" or "regular" is preferable in ads because they minimize the inference that long-term tenure was to be given to an employee after he/she was hired.
2. Take proper steps to ensure that advertisements and brochures are properly worded to comply with various federal and state discrimination laws since companies are prohibited from pub- lishing advertisements indicating any preference, limitation, specification or discrimination based on age. The Department of Labor has published an Interpretive Bulletin stipulating that "help wanted" notices or advertisements containing phrases such as "must be 18," "age 25 to 35 preferred," "recent college grad- uate," "sales trainee, any recent degree," and "sales executive, 2 yrs. out of college" and others of a similar nature discriminated against the employment of older persons when used in relation to a specific job and were considered to violate the law.

   Counsel Comment #1: Requesting an experienced, mature worker in an advertisement is not illegal since this does not discriminate against older workers.

3. Due to the enactment of the Americans with Disabilities Act of l990 (the ADA), employers must be certain that recruitment and job application procedures do not discriminate against qualified job applicants based on their disabilities. The first step in demonstrating lawful conduct can be accomplished through use of positive statements in your company's advertisements and brochures. In fact, it is recommended that all advertisements and brochures be rewritten to contain the following text or similar words: "Our company is an Equal Opportunity Employer and does not discriminate on the basis of a physical or mental handicap." Insertion of such language is important because all companies employing more than 15 workers as of July, 1994 must take reasonable steps to accommodate the needs of handicapped workers under the ADA. Persons with disabilities cannot be disqualified from applying because of the inability to perform nonessential or marginal functions of the job. Inserting similar language in your ads and brochures will demonstrate your company's desire to comply with the law and not initially exclude qualified but disabled applicants from the potential job pool.

Misrepresentation

Employers must be careful to avoid drafting help-wanted ads that misrepresent the job. State laws primarily penalize employers for painting overly rosy job descriptions which mislead applicants about the true nature of the job and ultimately disappoint them. Disgruntled employees misled by such an ad (e.g., told in the ad that the job offered was an important position with supervisory duties when in fact it is not) may sue the new employer for money damages; the employer might have to pay for the employee's job-related losses resulting from resigning from the previous job or relocating.

Advertising Agencies

Employers should recognize they may be liable for false or discrim- inatory ads conceived and designed by an outside advertising agency. Although an employer's exposure might depend on a number of factors (i.e., whether the ads were supposed to be reviewed and approved before distribution), generally, employers may be liable unless it can be shown that the language in the ad was a mistake and renounced immediately upon discovery.

Counsel Comment #2: To avoid mistakes, it is suggested that your own company designate one person to handle the drafting and review of all advertisements and brochures. Such a person would coordinate the placement of all recruiting ads to minimize the possibility of legal problems. Instruct that person to save copies of all ads and record the number of responses and number of hires. On any discrimination investi- gation or audit, copies of all previous ads will be one of the first items you are requested to produce, so be sure they are collected and stored in an accessible place for easy retrieval.