How To Get Sued:HR Errors to Avoid
Mitzi D. Wyrick
Wyatt, Tarrant & Combs, LLP500 W. Jefferson Street, Suite 2600
Louisville, Kentucky [email protected]
1010Hire the First Person Who
Walks In the Door, Regardless OfQualifications
HIRING
- Searching for applicants-Newspapers or Internet advertisements:factual and neutral- Employment agencies: convenient but not a shield from liability
ADVERTISEMENTS/POSTINGS
Should accurately reflect the nature and scope of the position to be filled
Contain requirements of position
No impermissible factors/considerations (e.g., race, age, sex, etc).
EEO statement
Applications
All applicants fill out an applications/requests for transfer
Retain applications
All applications/resumes should go through HR
Applications
Date of application;Applicant’s full name;Past and current addresses;Current telephone number and e-mail address;Statement verifying legal eligibility to work in the United States;Position sought;An affirmation of the applicant’s ability to perform specified (listed) essential job functions (should be those set out on the job description for the specific position or positions for which the application is being accepted);
Previous employment history;Educational history;Current employment status;Any special licenses or certifications;Compensation needs;Salary history;Emergency contacts;Reasons for leaving prior employment;References;Acknowledgment of requirement for post-offer drug test, and/or post-offer medical examination if applicable; Social security number (optional until after hiring)
Applications
Release authorizing the employer to check the applicant’s references and to perform a background check on the applicant but employer must also get separate consent form for background check
Affirmation that the information is true and complete to the best of the applicant’s knowledge and warning that any misrepresentations or omissions can result in refusal to hire or termination.
Affirm the employer’s right to terminate employment at will and notify the applicant that, if hired, employment can be terminated with or without cause or notice at any time.
Do Not Include in Applications
age or date of birth
marital status
race
religion
national origin
questions about physical characteristics or medical impairments or conditions
arrest record
Electronic Applications
Must be retained like paper applications
If require a paper application, require of all candidates
Recordkeeping
Retain applications
Retain job postings/advertisements
Retain any screening criteria
Retain offer/rejection letters
99Do Not Train Your
Interviewers
INTERVIEW - Should only be conducted by personswell-versed in employment laws
- Take good notes-If any notes are taken, they should scrupulously avoid any reference to anything other than applicant’s skills, experiences, demeanor, and responses to appropriate questions-Standardized interview forms and checklists are encouraged
- Interview questions are subject to the same limitations as application questions
Interviews
Interviewers should be trained in what questions can be asked and should not be askedGive the interviewee the job description and go through the job descriptionMake sure job description is an accurate description of the requirements of the jobEnsure the applicant can perform all of the essential functions of the job
Interviews
If the interviewee says they can perform the functions, but require an accommodation or assistance of any sort -
Involve HR
Document the request
InterviewsAsk the same questions of all applicants
No derogatory comments or inappropriate references/symbols in your notes
a. Ex. Do not note that applicant is pregnant or missing a limb
b. Ex. Do not use male and female symbols or abbreviations for race (i.e. BM or HF)
Limit notes to observations about ability to perform job
Interviews
Do not ask questions about obvious disabilities or medical conditions
Always document anything out of the ordinary
Questions To Avoid During Interviews
Do not ask about disabilities or medical conditions
Do not ask about age/date of birth (including high school graduation)
Do not ask about family status or family plans (married, # of kids, pregnancy, or maiden name)
Do not ask about dependent children
Do not ask about arrest records
Avoid questions on memberships in organizations
Do not ask whether they own their own home
Questions To Avoid During Interviews
Do not ask about medications
Do not ask if the applicant has ever filed for workers’ comp, STD or LTD
Do not ask about the applicant’s unusual name or what country she/he is from
Do not ask about religious beliefs
Do not ask where born
Do not ask for a photograph;
Do not ask about citizenship
Other Questions To Avoid
Union activities
Sexual orientation
Are you a smoker?
Anything to imply that status/association may affect jobe.g., willing to work long hours despite having small children?
if female, comfortable supervising males?
special needs child affect your reliability?
Comments To Avoid During Interviews
Do not attempt to predict the future, especially on hiring
Do not imply an offer will be made
Comments To Avoid During Interviews
Do not make promises about employment status (e.g., no one gets fired around here)
No off-color jokes or ill-advised humor
Do not make promises you cannot keep
What Can You Ask?
How many years of experience for job for which you have applied
Educational background – schools
Degrees and certifications
Abilities/Skills/Knowledge that make them suitable for position
Training
The Paper Trail
Save all documents from interviews--notes, applications, etc.
HR should maintain documents
Lawsuits or EEOC charges over discrimination in hiring can be filed months/years later
But She Said It First
You cannot stop an applicant from raising some of the forbidden issues
If applicant volunteers information, document that applicant brought it up
Casual Contact≠Casual Interviews
Do not turn casual meetings into job interviews
Make sure applicant knows it is not a job interview
Make no promises
Background Checks
Background Checks
EEOC has increased its scrutiny of employer hiring practices
arrest and conviction records
credit history
Criminal Record Checks
Check prior criminal convictions
Reduce negligent hiring claims
Obtain written permission
Do not check for arrests that did not result in a conviction
No blanket policies
Fair Credit Reporting Act
Applies to any employer, regardless of size, that uses a consumer report or investigative consumer report to make an employment decision
Not limited to “credit reports”
if 3rd party performs background check, disclose in writing that it will be done and disclose rights and report if take adverse action
need written consent form
Background Checks
Info from outside sources should be avoided
If obtain information from outside source, document who, what, when, where, why
Contact HR immediately to discuss
Make sure that you are allowed to use the info
Background Checks with Social Networking
Privacy Issues
Federal Laws (Electronic Communications Privacy Act of 1986, Stored Communications Act, etc)
State Laws
Background checks
Employer may accidentally discover protected information (i.e., age, marital or familial status, disability, religious affiliation, race, etc.)
Tips for Reviewing Social Networking Sites for Applicants
Fair Credit Reporting Act disclosure and reporting requirements if third party conducts searches
criteria must be applied consistently
conduct all searches the same way
may screen out certain groups if only rely on social networking sites
Medical Exams
Only post-offer
Make sure job-related and consistent with business necessity
Apply requirement consistently
Hiring Decisions
If choosing between applicants, make sure there is a record of why
Do not overlook existing
employees as candidates
for open positions
Notify all applicants of the decision
Verify eligibility to work in US and obtain appropriate documentation
88Do Not Review Your Offer Letter andPromise More Than You Can Deliver
OFFER LETTER
- The offer (oral or written) should:-Avoid any promise of employment for a specific period of time, expressed either by date or by the occurrence of a particular event-Avoid reference to a salary in annual terms or reference to a probationary period-Contain language reminding the employee that the offer may be contingent on certain conditions-Remind the employee that the employment is at will
What to Include in Offer Letter
offer of specific position
start date
employment at-will status
no contract/guarantee of employment
any conditions/contingenciese.g., satisfactory background check, drug screen
time for acceptance
What Not to Include in Offer Letter
Annual salary without appropriate limiting language
Guarantee of period of employment or hours
Description of benefits without language allowing employer to change/revise
77Refer to Your Employee’s Gender, Race,
National Origin, Disability, And Age As Much As Possible
DISCRIMINATION
- Anti-discrimination laws-Age, Race, National Origin, Gender, Disability-Tobacco users under Kentucky law
- FMLA
- USERRA
- State law forbids discharge for filing or pursuing workers’ compensation claims or jury service
- Beware of retaliation claims!
66Never Give Evaluations Or Feedback
To Your Employees
EVALUATIONS
- Give honest and consistent evaluations
-Hard to defend a belated complaint that an employee had performance problems when the employee got regular raises, no record of discipline, and received no negative feedback on evaluations
-Have employees sign their evaluations
55Do Not Respect Non-CompeteOr Non-Disclosure Agreements
AGREEMENTS
- Ask every new employee about the existence of non-compete and non-disclosure agreements from prior employment
- Be familiar with physical and temporal limitations in agreements
44Always Summarily Fire Your
Employees and Be As Rude As Possible
TERMINATION- Be sure the employee has notice and a chance to mend his or her ways if possible
- If not, at least get the employee’s side of the story before the termination takes place and write it down
- Clearly articulate the legitimate reason(s) for termination
-Handle termination with privacy and dignity
- Think of possible red flags before termination and consult counsel if necessary
33Never Follow The Policies InYour Employee Handbook
HANDBOOK
-Be fair and consistent with employeediscipline
- If you do not enforce your policies, you eviscerate them and adverse actions become harder to defend
-Keep yourself current on developments in the law and review policies, practices and forms regularly to ensure compliance
22Always Speak Ill of the“Recently Departed”
EX-EMPLOYEES
-Be careful what you say to prospectiveemployers about your ex-employees
-Give neutral references and do not be led into giving “hints”
11Never Document Anything Under Any Circumstances
DOCUMENTATION
- Document, document, document
-Always be thorough, objective, and accurate-Incomplete or inaccurate records can sometimes be worse than no records at all
- Retain documents for at least five years
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