HAHN AGENCY, INC.

Employment Practices Loss Control:
The Hiring Process

The groundwork for many employment practices claims takes place at the first few contacts with the prospective employee. Lets look at the hiring process and some actions that can be taken to avoid and reduce these potential future losses. The main areas addressed on this page are as follows:

Job Applications top

Many organizations overlook job applications both as a source of potential liability and as the first in a series of documents that can assist them in avoiding liability. Organizations must be aware of the legal impact of application questions and tailor their forms accordingly.

Federal and state discrimination laws limit the types of questions that can be asked on job applications. As a general rule, employment applications should not directly or indirectly seek information about an applicant's race, color, religion. age. sex. national origin or other protected status or traits.

While Title VII does not expressly prohibit the use of 'suspect questions" in job applications, many state or local laws do. For example, some states prohibit seemingly innocuous questions such as the date of graduation from high school, marital status, type of military discharge or inquiries into those organizations or clubs to which the applicants belong.

The ADA prohibits disability-related inquiries and poses special challenges in interviewing which are discussed below.

Just as there are certain topics that should not be addressed in job applications, there are a number of items that should be included.

Every job application for a non-union position should state that, if the applicant is hired, employment will be "at-will," meaning that the employee will not have a contract for a specific duration and can be terminated at any time for any reason, with or without cause. There should also be a statement that this employment-at-will relationship can only be changed by a written agreement signed both by the employee and a designated officer of the organization.

Applications should contain an authorization allowing the organization to check references and, if relevant to the position, conviction records. The authorization should also include a statement releasing all persons from liability resulting from supplying or using the information sought. The authorization and release will help protect against defamation and invasion of privacy liability if a former employer gives a negative reference or divulges sensitive personal information.

The applicant should be required to verify that the information provided in the application is true and agree that providing false information may result in rejection of the application or dismissal at any time if the applicant is hired.

Finally, the application should include a statement that the organization is an equal opportunity employer.

Interviewing top

The interviewing process can be a breeding ground for employment claims if staff members unfamiliar with the nuances of Federal, state and local employment laws are involved. Inappropriate, offensive or unlawful questions can create unnecessary liability. The ADA in particular restricts the types of questions an organization may ask an applicant. Training is the key.

• Applicants should not be asked, directly or indirectly, about their protected traits or status. The same general questions should be asked of both sexes. Women should not be asked about their marital status, family plans, child care arrangements or whether their spouses will relocate with them.

• Under the ADA, an organization may not ask disability-related questions and may not conduct medical examinations until after a conditional offer of employment has been made to the applicant. The fact that an individual has an apparent disability is not a basis for refusing to interview or hire the individual. Applicants can, however, be asked if they can perform job functions with or without reasonable accommodation.

• Applicants cannot be asked if they have filed for workers' compensation or have ever been injured on the job.

• Applicants cannot be asked about lawful drug use if it is likely to elicit information about a disability.
  
• Applicants generally cannot be asked whether they will need reasonable accommodations to perform a job. However, when an organization could reasonably believe that an applicant will need a reasonable accommodation to perform the functions of a job, it may ask limited questions. The organization then can ask if the applicant needs a reasonable accommodation and the type of accommodation needed to perform the functions of the job.

• Applicants can be told about uniform attendance or overtime requirements and asked if they can meet those requirements.

• Applicants can be asked about current illegal use of drugs because an individual who uses illegal drugs is not protected by the ADA.

• Applicants can be asked if they are of sufficient age and have proper documentation to work.

• Questions about non-job-related, personal matters should be avoided in the interviewing process.

• Individuals conducting interviews should not make any representations or promises about job security, length of employment or grounds warranting termination. Applicants raising questions on these topics should be referred to the organization's employee handbook or other official human resources policies or procedures.

• Applicants should not be promised exemption from work rules or the organization's policies and procedures.

Hiring Documentation top

Securing the proper documents is important to ensure that only qualified employees are hired and that they are legally entitled to work. The following documents should be secured from each applicant.

• A completed and signed employment application should be obtained. This ensures that applicants have agreed to the authorizations, releases and disclaimers in the application. Resumes should not be accepted unless accompanied by a signed application.

• Organizations should secure documentation that any applicant under the age of 18 years meets the requirements to work established by the Department of Labor.

• A completed 1-9 form should be secured for each employee, containing proof of the employee's eligibility to work in the United States. These forms should be kept in separate files and available for inspection by the Immigration and Naturalization Service.

• Organizations should also obtain employee signatures on handbook receipts and on agreements the organization wishes to enforce such as non-compete, confidentiality, trade secret or arbitration agreements.

Written Personnel Policies, Handbooks and Other Materials top

Written personnel policies and handbooks can alert employees to an organization's rules and procedures but also can be a source of misunderstanding and potential liability if not properly prepared. Further, circulating improper materials such as jokes or cartoons that are sexually explicit or demeaning to certain groups of employees may also create morale problems and violate employment discrimination laws.

All (non-union) employee handbooks and organization policies should state that they are not contracts or conditions of employment and that the policy or handbook can be modified, interpreted or eliminated at the organization's sole discretion. Handbooks should state that the employee's relationship with the organization will be at-will and that either the organization or the employee can terminate it at any time, with or without notice. This 'Disclaimer" statement should also provide that the employee's at-will status only can be changed by a written document signed by both the employee and a designated officer of the organization.

Any description of benefits prepared by the organization should state that the actual coverage described in the official insurance policy or summary and description will prevail if there is a conflict in terms. Benefit booklets should also state that the benefits are continually reviewed and may be changed or terminated at any time at the organization's sole discretion.

Employees must be notified concerning their rights under the FMLA, if applicable, and when FMLA rights might be used. Covered organizations must not only post a general notice explaining the FMLA's provisions but also give specific notice to all employees taking the leave specifying their rights and obligations. Similar state or local laws may also contain these requirements.

Many organizations have concluded that resolving disputes 'in-house" through internal grievance procedures is an efficient, cost-effective alternative to intervention by administrative agencies or the courts. These procedures can contain a number of steps to insure a fair review of the grievance, frequently culminating either in a review by a designated officer of the organization or by a peer review panel. Some organizations also permit or require their employees to pursue employment claims in arbitration before sponsors, such as the American Arbitration Association.

Guidelines for Circulating Information

• All employees should be aware of the organization's policy against sexual and other illegal workplace harassment, such as harassment based on race, color, national origin, religion, age, disability or other protected status or traits. The policy should be in writing and circulated periodically.

• Employees should be given copies of all applicable policies and work rules, and some record should be kept to establish that the employees have received them. This may be done by way of a receipt or, if not possible, by a supervisor or manager listing those who have received the materials.

• The organization must speak with one voice. Individual supervisors or managers should not issue policies or procedures requiring that terminations be for cause, that a particular procedure will be followed before termination, or that progressive discipline is required prior to the termination of employees.

• If more than one supervisor or manager evaluates an employee, the evaluations should be summarized in one overall rating. This overall rating can then be given to the employee and will not send mixed signals if individual evaluations should differ.

• No writing should comment on an employee's race, color, sex, age, religion, national origin, disability or other protected status or trait.

• No jokes, calendars, pictures, cartoons or other documents which could be viewed as being demeaning to a person's race, color, sex, age, religion, national origin, disability or other protected status or trait should be permitted.

• Any graffiti in working areas or rest rooms should be removed as soon as possible. Employees should be reminded that such graffiti is unprofessional and could give rise to workplace harassment claims.

Many successful organizations have begun using e-mail, voice mail or the Internet on a regular basis. While these systems have obvious benefits, their casual use or abuse may also foster employment claims.

Organizations should adopt written policies regarding the use of the organization's electronic communications. These policies should inform employees that they have no legitimate expectation of privacy in e-mail and other electronic communications, preserve the organization's right to monitor or review all electronic communications, limit their use for personal reasons, and prohibit the use of unprofessional, threatening, harassing or discriminatory language.

Further, the use of the Internet for personal reasons or to access unprofessional or sexually explicit materials should be expressly prohibited. Finally, organizations should require that truly confidential communications be sent by non-electronic channels.

The following materials must be posted in areas where they can be seen by employees:

• The U.S. Department of Labor Federal minimum wage poster.

• The Federal Employee Polygraph Protection Act poster.

• The Federal Family and Medical Leave Act poster.

• The Federal Occupational Safety and Health Act poster.

• The Federal Equal Employment Opportunity poster which includes commentary on Title VII, the ADA, the ADEA and several laws or orders governing Federal contractors, subcontractors and recipients of Federal financial assistance.

• Any required state or local anti-discrimination agency posters.

Illinois notices

Right- to-know regarding toxic materials

Sexual Harassment and discrimination

Minimum Wage & Child Welfare

• Any required state workers' compensation posters.

Illinois notices

Identification of worker’s compensation benefits and benefits provider.

 

Employment Practices Loss Control

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