by Greg S. Labate
The purpose of this article is to show employers how to avoid liability when hiring, disciplining, and terminating employees.
An employer’s decision to hire or reject an applicant must be based entirely upon lawful criteria. This requirement applies to all aspects of employee selection, including advertising, recruiting, applications, interviews, and hiring. Avoid obtaining information that identifies the protected class of an applicant, such as the applicant’s gender, race, color, national origin, ancestry, citizenship, age, religion, sexual orientation, marital status, pregnancy, disability, cancer-related medical condition, military status, or political affiliation.
The law prohibits advertisements that specify a preference based upon any protected class. Therefore, use neutral language in advertisements. For example, avoid the term “salesman;” instead, use the term “salesperson” because it is gender neutral. Also avoid the use of any code words, such as “all-American type,” “unattached,” “energetic,” etc.
Employment applications should be updated frequently to comply with the law. Avoid any questions on the application that reveal the applicant’s protected class. Require that the applicant provide complete responses to all questions. Do not allow the applicant to simply attach a resum�. Ensure that the applicant indicates the reason for leaving previous employers, and explains all periods of unemployment. Include a statement that any misrepresentation or omission is grounds for immediate termination. Also include an at-will employment acknowledgment in the application.
Contact all references provided by the applicant. However, avoid invading the applicant’s privacy. Obtain the applicant’s written consent before conducting any detailed background investigation.
The interview is an excellent tool to obtain information about an applicant that is not reflected in the documentation. Prepare for the interview by reviewing the position sought, as well as the applicant’s resum�, application, and references. Reconcile any inconsistencies in the resum� and application. Avoid general questions, personal questions, and questions that identify the protected class of an applicant. Discussions should be specifically related to the position for which the applicant is applying. Allow the applicant to do most of the talking during the interview.
Always be able to state with certainty the reasons for the hiring decision. Carefully document the reason for this decision, especially where an applicant is not hired, and retain these records.
It is strongly recommended that all employers have a well-written, updated employee handbook. Ensure that all employees sign an acknowledgment of receipt of the handbook, which includes an express at-will employment agreement signed by the employee. Make sure that there are no employment policies that conflict with the at-will employment policy.
Schedule orientation for new employees, preferably on the first day of employment, in order to distribute employee handbooks, obtain signed at-will agreements, review key employment policies, distribute job descriptions, and identify specific grievance procedures. Document that the employee attended the orientation.
Discipline & Termination:
Employers must realize that the manner in which an employee is disciplined or terminated may mean the difference whether a lawsuit is filed against the employer. Treat employees with fairness, consistency, dignity, and respect when engaging in discipline or termination. Even though employment is at-will, employers should always be able to prove that there was good cause to discipline or terminate an employee.
Employers should have regular performance evaluations for all employees. The evaluation should notify employees of their strengths and weaknesses, and provide them with an opportunity to improve their performance. The person preparing and presenting the evaluation should be the person most knowledgeable about the employee’s performance during the evaluation period, and should review the employee’s personnel file before preparing the evaluation. Use objective criteria in evaluating an employee’s performance whenever possible. The evaluation should be fair, yet brutally honest. Always offer the employee an opportunity to respond in writing to the evaluation. Ensure that the employee signs the performance evaluation.
Always be fair and consistent concerning any discipline. Discipline should be based upon specific acts, such as poor performance, misconduct, or violations of company policy. The disciplinary action should be appropriate to the facts of each case. The reasons for the discipline should be clearly communicated to the employee in writing. Carefully document any disciplinary action. Even if it is a verbal warning, the employer should document the fact that a verbal warning was given to the employee. Have the employee sign any such documentation.
The decision to terminate should always be based upon legitimate business reasons, supported by ample documentation, consistent with the employer’s policies, conducted in good faith, and for good cause. Provide the true reasons why the employee was terminated, but leave yourself room to expand upon these reasons . Have a witness present at the termination meeting. Conduct exit interviews whenever possible.
Concerning severance, employers should have a written policy that the payment of severance is at the sole and absolute discretion of the employer. Employers should only provide severance if the employee signs a release of all claims against the employer.
Concerning requests for references, employers should have a written policy that they only provide the employee’s date of employment and position. Any additional information provided by the employer may lead to litigation by the former employee for defamation and/or the third party provided with the information for misrepresentation. Also avoid any supposed “off-the-record” comments. The employer should designate a specific employee to be the contact person for any such inquiries.
If employers follow these simple guidelines, they will have a greater chance of avoiding liability when making these very important employment decisions.