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PITFALLS TO AVOID WHEN HIRING AND FIRINGHIRING PITFALLSEvery employer when hiring a new employee would prefer to know as much about the potential employee as possible. Problems, however, arise when the employer seeks information not related to the position it is seeking to fill or information that may tend to exclude certain minority groups. Special attention must be given during all phases of the hiring process to avoid seeking information that is not directly related to an individual's ability to perform the position for which the employer is hiring. WRITTEN JOB DESCRIPTIONSA written job description is the framework to the entire hiring process and can assist the employer in the defense of a hiring claim but only if it is prepared appropriately. The specific functions of the position must be accurately described. It is often useful to review the functions of an incumbent and compare the employee's actual duties to those contained in the position description. The concern is in having duties contained in a particular description, which in practice are not actually performed by the employee. If an employee is required to unload trucks and to enter inventory into a computer system, limited typing skills may be required, but in all likelihood, would not be necessary for such an individual to type 100 words per minute. It is key to any description that actual major and minor functions are sufficiently detailed that the employer can use the description to identify qualified applicants, but not so detailed that it excludes applicants for reasons not related to the actual day-to-day functions of the position. In preparing the description, I prefer a "less is better" structure. It should address the employer's "needs" not its "wishes." When reviewing or preparing a job description the employer should:
The resultant job description should include and identify the functions which the employer believes are "essential functions" of the position. This will allow an employer to disqualify those individuals who are unable to perform the essential functions even with a reasonable accommodation. DEFINING THE LABOR POOL/JOB ADVERTISEMENTSWith a succinct and thoughtful job description in hand, the employer is now ready to find the ideal employee. The employer can post the position for current employees to bid on, it can contact state employment agencies, it can advertise in local newspapers or can engage in any number of other methods to attract qualified applicants. It is important for the employer to select a method of advertising its job opening that is likely to attract members of all protected classes. Prior to selecting a particular method, the employer would be well-advised to look at its current work force to determine if the current work reflects the make up of the community in which the employer is located. It may be necessary to make greater efforts to reach out to underrepresented minority groups. The employer may find it necessary to not only advertise in the Denver Post and Rocky Mountain News, but also to seek out Spanish speaking papers or radio stations or other ethnic media. The Office of Federal Contract Compliance will review an employer's documented efforts to diversify to confirm that a particular employer is using all methods available to attract qualified minority candidates. The employer may also use job fairs or, more recently, the internet. The problem with the internet, however, is the potential top attract an unmanageable number of responses. Employers are required to maintain job applications for one year, and to document that they have considered each application received. The response generated from an internet advertisement could generate thousands of applications that the employer will have to respond to and maintain in its records. Job fairs, on the other hand, generally attract a manageable number of applicants and usually do not discriminate against people with protected characteristics. Various federal and state anti-discrimination laws and regulations prohibit employers from using advertisements to discriminate against people with protected characteristics. Job ads stating a preference for applicants based on gender, age or other protected characteristic are prohibited, unless that characteristic is a bona fide occupational qualification for the particular job involved. Also certain advertising methods, such as word-of-mouth recruitment, may have a discriminatory impact because recruitment is likely to mirror your current workforce, which may be underrepresented. Employers should be careful to review the content of the job advertisement and any other means by which they are seeking new employees to ensure the opportunities they are marketing are restricted only on the basis of necessary, position-related skills and qualifications. Employers should avoid using phrases such as, "recent college graduate," "0-1 years of experience," "Young, energetic," "Hostess," "Waitress," or "Christian mechanic." EMPLOYMENT APPLICATIONSThe purpose of an employment application is to gather information from prospective employees, so that the employer can make an informed hiring decision. Most of the statutes enforced by the Equal Employment Opportunity Commission (EEOC), with the exception of the Americans with Disabilities Act, do not specify information that may or may not be solicited from applicants. What is important is whether the information being solicited is sought for discriminatory purposes. Inquiries which directly or indirectly disclose the applicant's race, color, religion, sex, national origin or age will be closely scrutinized and may constitute evidence of discrimination. Ask only questions that will provide information about the person's ability to perform the job with or without reasonable accommodation. Examples of questions to be avoided include:
INTERVIEWING , TESTING AND MEDICAL INFORMATIONDuring the interview process, the questions should focus on knowledge, skills, and abilities. They should be job-related and nondiscriminatory. In addition to those noted in the section above, question areas to avoid include:
Question areas that may be probed should relate specifically to the applicant's prior educational and work experience and attitudes. These include:
Both the Americans with Disabilities Act of 1990 and the Colorado Anti-Discrimination Act of 1990 ban pre-offer medical examinations due to concerns the exams may be used to exclude applicants with disabilities from jobs they are able to perform. A post offer medical examination may be required provided it is required of all new hires within the same job category. In Colorado, only examinations that test for essential job-related functions are permitted. If a conditional offer is withdrawn because of an applicant's disability, the reasons must be job-related and consistent with business necessity, and the employer must be able to demonstrate that the applicant could not perform the essential job functions even with a reasonable accommodation. Types of tests that are not regarded as medical and may be administered at the pre-offer stage include: physical agility tests to determine if an applicant has the physical ability to perform a job-related task, physical fitness tests that measure an applicants performance of physical criteria and examinations intended to determine current illegal drug use. Aptitude tests, personality tests, I.Q. tests and honesty tests are medical tests and generally require case-by-case review. BACKGROUND CHECKSReference checking is generally a wise practice and an inexpensive step that employers can take in making a hiring decision. They should, however, avoid certain sources of information because the information cannot be legally used in making the hiring decision. Permissible inquiries include:
Avoid inquires that seek:
EMPLOYMENT OFFERSJob offers should be communicated to the applicant in writing. The letter should accurately describe the position being filled; the physical location of the employment facility; the monthly or annual salary or hourly rate of pay; normal working hours and requested starting date. The letter should also include a statement that the employment is "at-will" or for a pre-defined term. It should require the potential employee to accept the offer in writing by a certain date. One major pitfall to avoid is the desire to add some touchy feely language to the letter, such as "We look forward to a long and mutually beneficial relationship." Avoid any language that could be construed to create an expectation on the part of the new employee, and which could tend to create an exception to the employment at-will doctrine. If the job offer is conditional, the condition should be expressly stated. For example, if the offer was conditioned on the employee passing a drug-screening test, the offer letter should so state. ORIENTATION AND TRAININGOnce the offer has been extended and accepted and after any pre-employment conditions have been satisfied, the employer should require the new employee to complete an orientation program. The program should be structured and have checklists for the personnel conducting the orientation to confirm that the new employee has been informed of company policies, procedures and benefits. The orientation should include all the information an employee will need to properly function in the new position. Dress codes, if any, should be reviewed, procedures for obtaining supplies, uniforms or other needs should be detailed. From the employer's perspective, orientation serves two purposes: it creates a knowledgeable employee who is not spinning his wheels trying to find the men's room; it provides ground rules for the new employee to follow; and a means for the employer to take action if the rules are not followed. It would be difficult to discipline an employee for taking an hour lunch on the basis that company rules provide for only 45 minutes if the employee had never been properly informed of the rule. A good orientation program will address all of the local rules and employer expectations. FIRING PITFALLSAT-WILL DOCTRINEColorado is an employment at-will state. Basically, employment at-will means that either party to the employment relationship may terminate that relationship at any time without cause. The first pitfall to avoid in the firing process is a belief that the employment at-will doctrine will provide any protection to the employer. Over the past two decades, courts and legislatures have carved numerous exceptions to the at-will doctrine out. It will rarely be the case that the termination of a particular employee does not fall within one of the exceptions. The exceptions fall into four major categories: federal statutory exceptions, state statutory exceptions, public policy exceptions and implied contract and promissory estoppel exceptions. DOCUMENTING PERFORMANCEBecause of the numerous exceptions to the at-will doctrine, it is imperative for an employer to document employee performance deficiencies. When employees are not performing up to expectations, the employer should document such failures in the employee's personnel file. For example, if tardiness is a concern to the employer, the employer should note all incidents of tardiness, even if an employee is late only once in a blue moon. By tracking all incidents of tardiness, an employer can review a particular situation to determine if disciplinary action is required. An employer can then document a habitually tardy individual. If the employer has only documented a certain individual, the employer will not be able to produce evidence that this particular employee was worse than others or that the employee was not meeting guidelines while others were complying with the guidelines. Consistent disciplinary guidelines are extremely important. Supervisors should be trained on company guidelines and rules to insure that each supervisor or department is treating a particular type of conduct in the same manner as other departments within the company. If the company has a human resource department, it is good practice to have one individual within that department review all disciplinary actions prior to actual implementation to insure consistency. If there is no human resource person, a senior manager should be assigned the responsibility. PERFORMANCE REVIEWSRegularly scheduled performance reviews are generally a good way to monitor employee's performance. They should be administered to all employees at regularly set intervals. Annual or semi-annual reviews are the most common, however, employers should avoid committing to any set schedule in an employee handbook as it may result in a claim of discrimination for the employee who does not receive a timely review. As with documenting disciplinary problems, performance reviews need to be administered uniformly with established standards. A common problem, however, is the tendency to issue "soft" reviews if the reviewer does not see a major problem at the time of the review. Caution should be taken to point out all of the employee's weaknesses as well as the employee's strong points. If the employee later turns out to be a bad apple, several years of glowing performance appraisals will not strengthen your claim of termination for cause. Glowing performance appraisals followed six months later by a for cause termination will be used by plaintiff's counsel to show pretext if, and when, disciplinary action is required. EMPLOYEE HANDBOOKSThe larger the company, the greater the need for an employee handbook to insure that company policies or guidelines are understood by all and uniformly adhered to by all employees and supervisors. Companies with 75 or more employees will generally find a handbook beneficial. Extreme caution should be exercised when preparing the company handbook. Policies set forth in the handbook can very quickly become elements of an employee's employment contract. If, for example, the handbook describes a particular progressive disciplinary procedure the employer can later be held to an implied contract with the employee relative to that procedure. It is generally better to describe rules or procedures as "guidelines" and subject to change at the discretion of the employer. It is equally important to provide an express and conspicuous disclaimer that the handbook does not constitute a contract or implied contract and reinforce that the employment relationship is "at-will." The disclaimer signed by each employee. While most companies attempt to treat their employees fairly, do not state or promise to do so in any employee booklet or handbook. Any such statement or promise can easily be converted into a contractual obligation. FOLLOWING A TERMINATION PROCEDUREOne of the most common problems associated with termination is the employer's failure to follow its own guidelines in conducting a termination. If the company guidelines call for a progressive disciplinary procedure, cutting out one or more steps in that progression could reflect disparate treatment, particularly if more protected individuals are not afforded all of the steps. Even if your guidelines provide for shortened procedures at the company's discretion, a claimant can make a case if it has been the company's practice to always follow the active procedure, but for the claimant's case. It is often wise to involve a non-participant in the decision to discipline, i.e., someone out of the normal chain of command. This allows for a more objective determination and can help insure that the company is treating employees from various departments equally. An exit conference can also be beneficial, particularly if performed by someone other than the terminating supervisor. STATING A VALID REASONBecause Colorado is an at-will state, there is no requirement to state a valid reason to terminate an individual. You can merely inform the individual that the relationship is at an end and wish them the best in the future. Your defense to a claim would be that you merely decided to end an at-will relationship. As I pointed out earlier, however, because of the numerous exceptions to the at-will doctrine, most terminated employees will be able to find an exception that fits their situation, such as an implied contract based on the handbook. It is therefore prudent to state the reason you are terminating an employee. The reason stated should be one you are prepared to defend. Do not "sugar coat" the termination paperwork to avoid confrontation, it will come back to haunt the employer. FINAL PAYIf the termination of an employee is at the volition of the employer, the employee must be paid immediately for wages or compensation for labor or service earned and unpaid at the time of the discharge, unless the payroll office is not regularly scheduled to be operational at the time of the discharge. The employee then must be paid within six hours of the start of the employer's next regularly scheduled workday. The compensation due includes accrued vacation and bonuses. REFERENCESWhen responding to a third party reference request, I advise my clients to provide only name, rank and serial number. Whether the employee left of their own accord or they were discharged, the safest route to take is to provide dates of employment, final job title and salary. I do not recommend answering whether or not the employee is eligible for rehire. Colorado does provide employers with a great deal of protection in this area, but it is not absolute. Some caution should be exercised. The employer is required to provide a copy of any written response to the subject of the reference check upon their request. SEVERANCE AGREEMENTSThe use of severance agreements and severance payments can greatly reduce an employer's ultimate cost in dealing with a terminated employee. Payment of a few weeks pay can often be given in exchange for release from the employee covering any employment related claims. It can also have the effect of forcing the employee to talk to an attorney before signing the release agreement issued in connection with the severance payments. Some statutes, including the ADEA, require waiting periods and require the employer to advise the employee of these waiting periods. If a severance agreement has been signed, be sure no payments are issued until the applicable waiting periods have expired. Because one of the benefits of entering into a severance agreement is obtaining a release from the employee for any past actions by the employer, no severance program should be described to employees in any benefit booklet or handbook. Doing so could result in the employer being obligated to pay the severance amount without obtaining any form of release. COBRA (CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT OF 1985)COBRA requires that all employees and their qualified dependents covered by an employer's group health plan to be allowed to elect to continue their coverage if it would end because of termination or reduction in hours. Terminated employees have sixty days to elect to continue their coverage. The continuation premiums are the employee's responsibility. Employers have a duty to send each discharged employee a notice of his or her COBRA continuation rights. The letter of notification should be sent certified mail return receipt requested. UNEMPLOYMENT COMPENSATIONEmployees who lose their employment through no fault of their own are generally entitled to the full unemployment benefits for which they are qualified. Opposing unemployment generally succeeds only in the clearest cases of poor attendance, disruptive behavior or violence. Many employers no longer oppose an employee's right to such benefits because the unemployment laws are construed very liberally in favor of the out of work individual. If you decide to challenge, however, beware. Transcripts of the unemployment compensation hearing often appear as horror shows to the unwary employer. This is because the employer frequently sends the immediate supervisor to the hearing with little, if any, training or experience in testifying. The supervisor makes several misstatements in the cross-examination of the hearing and those misstatements form the basis of a later wrongful termination action. Be sure that if you will be contesting an unemployment claim, you treat it as the beginning of a long and drawn out employment case, because it generally is just that. REFERENCESWest's Colorado Employment Law and Practice |