Avoiding employment problems
(and legal challenges)
down the road.
by Sirote and Permutt, P.C.
If the economic pundits prove correct and the economy is on the upswing, many employers may find themselves hiring new employees again, rather than downsizing their work force. In approaching a work force expansion, we remind ourselves and our clients that the most effective way to avoid employment problems is by careful and thorough interviewing and hiring. Many discipline, attendance, and production problems can be avoided by taking extra time and care during the application process, rather than after the person is hired and has become disruptive.
The cardinal rule of interviewing is simple: ask every job related question you have time to ask. If it is job related, it is most likely legally permissible. If the question is not job related, it is not relevant, and if it identifies or disqualifies persons in a legally protected group, then the question may be illegal. Some questions that are not job related ("What do you like to do in your free time?") can, never-the-less, be harmless and are legally permissible. Take care not to evaluate an applicant's responses to these questions by using stereotypes, however.
The following ten points should help you interview applicants and hire new employees in an effective and legal manner:
- Before the process begins, identify the essential functions of the position to be filled. Prior to the interview, establish what the employee will actually be doing (which is sometimes very different from what the job description reflects). Divide the functions between those that are essential (functions the employee must perform regularly) and those that are marginal (functions the employee may perform occasionally). Also, identify the characteristics of those employees who have performed this position well in the past and the characteristics of the employees who have been failures.
- Do not ask applicants about their marital status or whether they have children. Although these questions are legally permissible in most states, they rarely, if ever, are related to the job. Often they are the basis for gender-based stereotypes, such as the belief that women are more likely to follow their husbands between cities and are more likely to be the primary care provider for their children.
- Do not ask applicants about disabilities or medical conditions prior to extending a conditional offer of employment. The Americans With Disabilities Act forbids these questions at the interview stage. It does allow them after the applicant has received a conditional offer of employment and before the employee actually begins work. Note that this restriction does not prevent a drug test anytime during the employment process.
- Look for breaks in the applicant's employment history. Employees rarely quit a job without first lining up another one. A break between jobs may be due to circumstances beyond the applicant's control, such as an economic layoff, but it also may indicate relevant performance and attendance problems. The applicant should be asked to explain any breaks between jobs and also how the explanation can be verified.
- Look at the frequency with which an applicant has changed jobs. A series of short stays with other employers may indicate a more serious problem, and the applicant may be unlikely to work long for you. Again, the applicant should be asked to explain frequent moves between employers. Require applicants to complete an employment application; do not rely on the applicant's resume alone. Applicants select what information appears on their resume and what is omitted. The application includes questions and disclosures important to the employer that a resume alone does not provide.
- Verify the accuracy of everything stated on the employment application. Applicants often misstate or overstate their work history and educational background. This is sometimes only resume puffery, but other times may be outright falsification. Anything that cannot be verified should be covered in the interview and resolved to your satisfaction. Misstatements on a resume or employment application may be your first sign that the applicant might not be someone you can trust with your business.
- Contact the applicant's references from prior employers. A former supervisor will often provide much more useful information about an applicant than friends and co-workers. A caveat: Do not ask the reference any questions that you could not ask the applicant directly. Consider questions that are off limits for the interview as off limits for reference checks as well.
- Employers should also review their employment applications and any information distributed to applicants to ensure that these materials do not elicit information (even inadvertently) that the employer cannot ask in an interview. The most common defects are questions that elicit information that identifies whether an employee falls within a protected group (race, color, religion, sex, national origin, age, or disability). Also, make sure that employment applications are signed by the applicant with a verification that all information provided by the applicant is true and that the omission or falsification of information is grounds for rejection of the application or termination of employment.
- The Equal Employment Opportunity Commission requires an employer to retain an employment application as a business record for one year. However, the employer alone determines how long an application remains active and how long the applicant will be considered for positions that become available. If some positions are more difficult to fill, you should consider keeping applications for these positions active for a longer period than other jobs. Remember that as long as an application is active you should consider the applicant for any opening that becomes available and for which the person applied.
- The most effective and least disruptive way to avoid employment litigation is by taking the time to conduct careful pre-employment screening. Employers can use the screening process to identify 'red flags' that counsel against hiring an applicant, as well as to choose the best qualified applicant by identifying the characteristics essential to a successful job performance.
Sirote and Permutt, P.C., is a full service law firm located in Birmingham, Alabama. To reach them call 205-933-7111.
This article is reprinted from American Sweeper magazine, v3n1 1992.