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The Challenge of Hiring the Right Employee

2009-10-28T06:30:00.003-04:00

Hiring the right employee can be a challenge. You want to:

-Make sure the "chemistry" is right between your company and a new employee.

-Hire a trustworthy individual.

-Hire the applicant that most closely matches the job description.

-Comply with both your State's and Federal fair employment practices laws.

Yet, the question remains. What do I have to do to find the "right" employee?

Here are some suggestions to follow as you go down the path of hiring employees.

1. Use non-discrimination statements in all employment applications and advertisements for hiring.

2. Avoid asking the questions or making statements that are inappropriate as they can be misconstrued as discriminatory. Questions asked or written on employment applications involving race, religion, age, national origin, immigration status, sexual preference, family status and health should be avoided.

3. The Employment application and Employee Handbook should have an appropriate statement that employment is “at will” and that employees may be discharged with or without cause.

4. The employment application process should have authorizations to contact references as well as to conduct drug testing from time-to-time. If your company has a substance abuse employee policy that has a drug testing element, make certain that the policy complies with your State's laws.

Most of the restrictions on drug testing and substance abuse policies are found in state law. For example, the type of notice that an employer is required to give employees before implementing drug testing is governed by state law. If the drug test is positive for controlled substances, are you required to have a confirming test? How is the Confirming test performed? Can the applicant for employment or the employee testing positive challenge the test results? Once again, all these questions are answered under State law.

Many states have specific laws concerning the confidentiality aspects of employer required drug screening; both with respect to the actual drug screening procedures and as employee medical records.

Inquiries concerning current illegal drug use may be made at the pre-offer stage unless prohibited by State or Federal law. Inquiries into lawful medications currently being taken should be avoided except where appropriate on the consent form used as part of a test for substance abuse.

5. Avoid asking job applicants about their medical history as this may be misconstrued by applicants. Job offers may be made subject to passing a medical examination. Remember, for those applicants who may be disabled, you may need to make reasonable accommodations for the disability if hired.

6. Use Consumer credit Reports With Caution. If you have a policy on using consumer credit reports in evaluating candidates for employment or advancement, the application for employment should have an authorization signed by the candidate allowing you to obtain the report. Appropriate disclosures under the Federal Fair Credit Reporting Act must be made to the applicant.

The Federal Trade Commission has important rules on using consumer credit reports for job hiring and the use of such reports with employees. This includes disclosures prior to receiving an applicant’s or employee’s consent to obtain a consumer credit report, pre-adverse action and adverse action notices.

Copies of important information for businesses provided by the FTC is available online.

No discussion on employment practices would be complete without guidance on “immigration status.” While it is advisable not to ask a potential employee his or her immigration status, Federal law requires employers to comply with the I-9 Forms requirements in order to identify those employees who are authorized or not authorized to work in the United States. On applications for employment and pre-offer screening, do not ask to see the drivers licenses or passports of applicants for employment or any other document having a photo or birth date. Once a candidate accepts the job offer, you may request such documents.

I-9 Forms should not to be completed until after the applicant is offered the job and the job is accepted.

This article was first published by the author in blogcritics.org on October 25, 2009

Employment At Will - Endangered Species?

2009-10-18T11:02:00.008-04:00

This blog explains Employment At Will and the eroding of Employment At Will resulting from employee lawsuits and the carelessness of employers. It also give business owners and human resource professionals tips to help maintain Employment At Will in their workplaces. Jay originally published the article in blogcritics.

The definition of Employment At Will is succinct: “the ability to hire and fire employees for any reason or for no reason at all.” No justification is required. Employment can end at any time.

Sounds easy, doesn’t it? Not so fast!

Employers need to be aware of crucial exceptions in the law that curtail management’s ability to hire and fire employees for any reason, or no reason at all. Ignoring these exceptions invites employee lawsuits and government complaints against you and your company.

Exception One: Civil Rights Legislation. You cannot terminate an employee’s employment because of race, age, disability, national origin or any other lawfully protected class based on such characteristics.

Business owners and managers must keep in mind that state law is just as important as Federal law in the curbing of the traditional Employment At Will definition. For example, California prohibits discrimination based on gender identity or sexual orientation. Florida prohibits discrimination based on being a member of the National Guard. Oregon prohibits employment discrimination based on marital status. At least 20 states have prohibitions against employment decisions based on criteria not protected under Federal law.

Exception Two: Implied Contract. This exception comes out of lawsuits filed by employees against their former employers.

State courts have originated the “implied contract” theory to specifically water down Employment At Will. The exception is based entirely on the employer’s behavior towards employees. The employer has not protected its right to Employment At Will, or the employer has acted in a way that is contrary to having Employment At Will. As a result, an “implied contract” exists with the employee; employment cannot be terminated except for good cause.

Here’s how it happens.

The Employer receives an Employment Application from a candidate, and interviews the candidate. The hiring process moves along and a “probationary period” of 60-90 days is explained by the employer. The candidate is hired, and given an employee handbook that contains policies on performance evaluation and progressive discipline, and does not mention Employment At Will. Periodically, the employee has his or her performance evaluated and receives glowing evaluations. The employee is complimented on his/her performance, and assured that as long as the employee performs satisfactorily, the employee will remain with the company; sometimes with the admonition that continued good evaluations are the road to advancement in the organization.

One day, management decides to terminate the employee’s employment for no reason at all, relying on Employment At Will. Result: the now fired employee hires a lawyer and files a lawsuit in state court claiming wrongful termination. It is extremely likely that a court and jury will side with the employee.

The reasoning of the court and jury is predictable. There is an implied contract between the employer and employee that as long as the employee performs satisfactorily, the employee will not be discharged except for good cause.

Answer the following questions, and you can see for yourself the pitfalls of the above scenario.

If management enjoys the Employment At Will right to hire and fire, what is the purpose of a “probationary period?”

If the employee handbook has policies on progressive discipline, it must mean that the employer will not terminate an employee’s employment except for bad performance or good cause.

The assurances to the employee that good performance reviews are the way to success with the company is just icing on the cake for the employee’s attorney to make the employee’s case to the judge and jury.

Maintaining Employment At Will: A Checklist.

As an employer, if you want to protect the Employment At Will prerogative, your words and actions must constantly reinforce this right. We’ll use the above example of the employment process to illustrate how management can put into practice a system that will maximize the ability to maintain Employment At Will.

1. The Application of Employment – Make sure your Application has the words, “Employment is At Will” within the body of the application.

2. The Offer Letter – Yes, use an Offer Letter regardless of the position being filled. The Offer Letter should contain a sentence that Employment is At Will.

3. Use an At Will Employment Contract – As a lawyer counseling businesses on employment law, I have found that an At Will Employment Agreement is exceptionally useful.

4. The Employee Handbook – The most crucial of tools to maintain Employment At Will. Courts will always look at the Employee Handbook to see the intent of management. Here’s what an effective Employee Handbook should have and not have in order to protect Employment At Will.
a. The Employee Handbook must be specifically written for your state’s law and Federal law.
Complying with Federal law is not enough. State laws typically give employees greater rights than the Federal counterpart. Keep in mind that wrongful termination cases are usually in state courts. An employee handbook good for all 50 states may very well not protect your business as well as an employee handbook specifically written for your state laws. One size does not fit all.

b. An Acknowledgment Form signed by the employee specifying that the employee has received the employee handbook, and that the employee acknowledges that employment is at will.

c. A Policy explaining Employment At Will, with the Policy’s title just that: Employment At Will.

d. No Probationary Period policy.

e. All policies dealing with employee evaluations or progressive discipline must have statements that employment is at will.

5. Forms – All employee evaluations and warning notices must contain a notice that employment is at will.

While Employment At Will is endangered, the species is alive and well and can be nurtured and protected by following the simple principles spelled out in this article.

Employer's Dilemma - The Triangle of Liability

2009-10-13T21:09:00.004-04:00

FingerTip Manuals coined the phrase “The Triangle of Liability” to summarize the liability employers face from:

-Claims by employees arising out of the employer-employee relationship.
Discrimination in employment is an example of this type of liability.

-Claims resulting from employees interacting with one another.
Sexual harassment is an example of this type of liability.

-Claims made by customers because of an employee’s behavior.
An employee's use of a customer's personal information, such
as a credit card number, is a prime example of this liability.

The Threat

In its March, 2008 article, "The Enemy Within," CFO Magazine reported that companies fear employee lawsuits more than any other legal threat.

Businesses, no matter how big or how small, in any industry, for profit or not-for-profit, face the Triangle of Liability every single day. The dangers from employee lawsuits cannot be overemphasized.

During the 2008 fiscal year, The U.S. Equal Employment Opportunity Commission, filed 290 lawsuits, resolved 339 lawsuits, and resolved 81,081 private employee charges against employers. The EEOC recovered approximately $376 million in damages.

Businesses have recognized for many years that they are in danger of becoming a victim of employee lawsuits. Twenty years ago, Professor Gould in his article "Stemming the Tide" observed that “the cost of lawsuits that respond to a discharge, as measured by jury awards and settlements, has also increased geometrically and is beginning to draw concern from the business community… Awards in California wrongful termination suits actually exceeded settlement demands by the employees’ lawyers by 187 percent.

The Solution

How does a business owner protect him or herself from the possible financial cost imposed by the Triangle of Liability? A very obvious, simple and inexpensive answer, if handled properly and preemptively, is an effective Employee Handbook.

Your Employee Handbook must satisfy both state and federal law. Complying with federal law alone is not enough. On any given subject, federal law sets the minimum standard. State law expands on the federal standard and gives employees greater rights.

For example, consider employment discrimination. The federal standard prohibits discrimination on the basis of age, race, color, religion, sex, national origin or disability. Most states expand this class of employee protection to include discrimination based on military service, sexual preference, marital status or receiving an order of protection in a domestic violence situation. An employer using an Employee Handbook complying only with federal law and not state law will not minimize the risk of facing an employee’s state law based employment claim.

In avoiding the Triangle of Liability, keep in mind your Spanish-speaking employees. It does no good to defend a claim by a non-English speaking employee when the employee received an Employee Handbook written in English. An Employee Handbook written in Spanish is a must.

Finally, a word to the wise – Keep your Employee Handbook current. Laws do change, and your policies must change too!

The Employee Handbook; Protecting Employment At Will

2009-10-08T15:37:00.006-04:00

“At Will” employment is the term used for the basic employment adage that an employer can fire any worker for any reason or for no reason at all . . . for good cause or bad cause or no cause at all; an employee is employed “at the will” of the employer and the employer determines how long to employ a worker!

Employers need to be aware that legislation and court decisions in a number of states have eroded At Will employment. Courts and legislatures are finding reasons to require just cause — a rational business justification — before a firing can be warranted.

The biggest reason for the erosion of At Will employment has been changes in the various federal, state and municipal laws prohibiting discrimination. Federal and state anti-discrimination laws prohibit the firing of an employee based on such characteristics as age, race, religion sex, national origin, and in some states, sexual orientation. A person no longer may be fired for “any reason” if the basis of the dismissal is a prohibited employment practice.

At Will employment is also being eroded in cases where an employee is either recruited from another company, accepts a position based on employer assurances of job security instead of accepting another job offer, or transfers from one position within a company to another. If promises were made to the employee to lure the employee to join the company or accept another position with the employer, courts have found a way around At Will employment, and awarding damages to the discharged employee.

The one instrument that may erode At Will employment the most is an ill-conceived Employee Handbook. By creating an Employee Handbook / Employee Manual incorrectly, the employer may inadvertently hold out the promise that employees will not lose employment as long as performance is satisfactory. For example, where disciplinary steps are outlined, some courts have said that a contract has been established between the employer and employee so that the employee cannot be dismissed without good cause.

For years, a number of courts in various states have sought to erode At Will employment through this legal theory known as “Implied Contract.” Implied Contract means that as a result of an employer’s conduct, an employee has an “implied” contract with the employer requiring that an employee’s discharge be based on “cause,” such as an employee’s wrongdoing or inability to perform the job. Courts do look at a Company’s Employee Handbook or Employee Manual in making such a determination.

It is most important that an Employee Handbook be properly written in order to maintain At Will employment. An explicit disclaimer in the Employee Handbook can preserve the At Will employment relationship in the face of an employee’s implied contract claim. Not every disclaimer will have the desired effect of maintaining At Will employment in the workplace. An attorney drafted disclaimer is preferable.

Here are some suggestions to maximize an employer’s ability to keep Employment At Will:

1. Your Employment Application should specify that Employment is At Will.

2. Any Job Offer letter should specify that Employment is At Will.

3. Have a new employer sign an “At Will” Employment Agreement
as a condition of Employment.

4. Make certain that an “At Will Employment” acknowledgment receipt is signed by the employee when the employee receives the Employee Handbook.

FingerTipManuals Employee Handbooks are written by an attorney for each individual state and provide the language which reinforces employment At Will. Legal Forms and Human Resource Forms as an additional tool to reinforce At Will employment.

An attorney's expertise affords the employer peace of mind, and therefore does not require the employer to figure out the terminology which an employer hopes will uphold At Will Employment.

Sexual Harassment in the Workplace

2009-10-02T16:51:00.009-04:00

Sexual Harassment is a time-bomb ready to explode for employers who do not understand their obligations and responsibilities in this area of Employment Law. Sexual Harassment is against the law. It's that simple!

Businesses face significant damage awards and litigation if the business owner does not “get it right.” Two examples make the point.

-$325,000 paid by a Tampa Bay, Florida area pizza chain for subjecting female employees to a sexually hostile working environment. According to the U.S. Equal Employment Opportunity Commission, the restaurant’s manager was sexually harassing two sisters ages 16 and 17 at the time they were employed by inappropriate touching as well as egregious verbal comments.

-$200,000 paid to two employees of a steakhouse for the sexual harassment they were subjected to at the hands of an assistant manager.

What Is Sexual Harassment?

Sexual Harassment is defined as unwelcome sexual advances and other verbal or physical conduct of a sexual nature when:

-Submission to the conduct is either an explicit or implicit term or
condition of employment.

-Submission to or rejection of the conduct is used as a basis for any
employment related decision effecting the person who rejected or
submitted to the conduct.

-The conduct has the purpose or effect of unreasonably interfering
with the person’s work performance or creating an intimidating,
hostile or offensive work environment.

Sexual Harassment is no joke. Companies have found themselves in hot water because of off-color jokes told in the workplace as well as using demeaning language, such as “honey,” “sweetheart” and “cutie.”

The Need For a Sexual Harassment Policy

Whether you or your company is accused of violating state or federal laws, and regardless of the size of your business, every company should adopt a Sexual Harassment policy under which adherence by all owners, supervisors, managers and employees is required. Many of these policies provide for disciplinary action, including termination of employment, where Sexual Harassment is established.

What an Effective Sexual Harassment Policy Must Include

Businesses are required to be compliant with federal and state laws. Business owners must know exactly what the law expects of them and their employees. Likewise, in order for an employer to hold an employee accountable for the employee’s actions or failure to act, a business owner must provide information to their employees in a clearly written and documented fashion. A properly attorney prepared Sexual harassment Employee Policy that meets both federal and your state’s specific laws is vital to accomplishing this key business practice, and must be a part of every Employee Handbook.

First, the Employee Policy informs employees of your company’s standards of acceptable behavior. Secondly, employees know what you expect for successful employment with your company.

Keep in mind, as an employer you want employees to understand the “rules of the road” in order to become effective and valuable employees. If an employee cannot understand the language the “rules” are written in, it will be difficult to communicate what management expects, and difficult to hold such employees accountable.

In today’s workplace environment, many businesses are using Bilingual Employee Handbooks. Many businesses have employees who are more familiar and comfortable speaking, reading and understanding Spanish rather than English. A best practice is to have a Bilingual Employee Handbook available for these employees.

Employee Free Choice Act - Unions Take Aim at Small Businesses

2009-09-27T17:46:00.005-04:00

On March 10, 2009, H. R. 1409, the Employee Free Choice Act of 2009, commonly called "Card Check," was introduced in Congress to much fanfare and criticism. While pro and con debate rages, the goal of the Employee Free Choice Act of 2009 could not be clearer; Streamlining Union Certification. . .making it easier to unionize small businesses.

To read a plain English, concise summary of what small business owners will face if the proposed act become law, just click on the link above.

What is of paramount importance to the small business owner, and to any owner of a business regardless of size, is that work rules must be in place and distributed to employees before the union organizer takes aim on your business.

By having an up-to-date Employee Handbook , complying with both federal and your state's laws, you will have work rules in place.

Creating a Drug-Free Workplace Employee Handbook Policy

2009-09-27T17:15:00.003-04:00

Drug-Free workplaces are critical in today’s business environment for a number of very practical reasons.

Foremost, is to have a safe workplace for all employees.

Secondly, to prevent losses in productivity and the accompanying increase in workers’ compensation premiums caused by injuries resulting from the use of alcohol or controlled substances.

Additionally, Certain federal laws mandate that companies implement Drug-free Workplace programs. The federal Drug-Free Workplace Act applies to those employers having a federal government contract of $100,000 or more. This law requires employers to implement a Drug-Free Workplace program meeting certain guidelines.

Employers having motor vehicle drivers operating in interstate commerce are required to have in place a specific Drug-Free workplace policy which must comply with the federal Department of Transportation’s requirements.

Of course, various states have their own statutory requirements which must be met in order to establish a Drug-free Workplace and substance abuse program under state law. For example, Florida requires a waiting period for current employees before a substance abuse – Drug free Workplace Policy can become effective as to those employees.

The first order of business is to establish a Drug-free Workplace and Substance Abuse policy as part of a Company’s Employee Handbook Policy Manual. Such a policy cannot just be written. Most federal and state compliant policies must meet strict guidelines. For example, when may an employer require an employee to have an alcohol and control substances test? How can an employee challenge the test results? What form of discipline may be given to an employee who has an alcohol or controlled substance problem? Does management have an obligation to notify government authorities of test results?

Alcoholism or controlled substance abuse may be deemed a disability or covered by the Family Medical Leave Act or Americans with Disabilities Act. The policy must not violate these laws.

Attorney written Drug-free Workplace and Substance Abuse policies that comply with both federal and state law are available on the Internet. If you have Spanish speaking employees, a Spanish Employee Handbook Policy Manual in which the Drug-Free Workplace policy is written in Spanish may be appropriate.

Homeland Security Issues New I-9 Forms

2009-09-21T19:10:00.004-04:00

Department of Homeland Security Issues New I-9 Forms

The Department of Homeland Security has issued new I-9 Forms which remain valid until August 31, 2012. The Forms are in English and Spanish.

The I-9 Form in Spanish can only be used in Puerto Rico with one exception. Spanish speaking employees in other states may use the Spanish version as a guide to completing the English I-9 Form.

To obtain free copies of the new Forms by immediate download, just click:

I-9 Forms