How To Get Sued:HR Errors to Avoid

Mitzi D. Wyrick

Wyatt, Tarrant & Combs, LLP500 W. Jefferson Street, Suite 2600

Louisville, Kentucky 40202mitziwyrick@wyattfirm.com

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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