Safeguards in Hiring Process Can Help Prevent Lawsuits Later

There are five times in the employer-employee relationship when the company is most vulnerable to a worker’s lawsuit: when a person is hired, promoted, disciplined, fired or affected by a new policy.

Both litigation and employee relations problems can be reduced significantly if a company’s managers are alert and act carefully during these critical periods.

The key preventative measure they should take is to communicate the company’s employment policies so fully and effectively that the applicant or the employee is never surprised when the company takes a specific response to a particular violation.

While this article discusses steps that prudent companies should take during the hiring process, subsequent articles will discuss the other four critical points in the employer-employee relationship.

It starts with the application
A company should require all prospective employees to complete an employment application, without exception. Any applicant who doesn’t respond to a question on the form may be concealing data that could prove to be a problem later. If a prospective employee is simply uncooperative in their responses, their attitude is unlikely to change after they have been hired.

The employment application should be tailored to seek the information about the person that is most pertinent and important to the company’s business. If it is not, the company should obtain or develop a better application form.

Employment applications are subject to federal, state and local nondiscrimination laws. All questions asked on the application form must be job-related and nondiscriminatory in nature. The questions on the applications must be written carefully to avoid exposing the company to legal liability both before or after an applicant is hired.

For instance, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of an individual’s race, color, religion, sex or national origin. Also, many state and local anti-discrimination statutes have made a person’s marital status and sexual orientation “protected categories.” An employer could violate the law by simply asking an applicant to identify if they wished to be addressed as Mr., Mrs., Ms., or Miss. Or asking an applicant how they acquired the ability to speak a foreign language might be construed as an illegal inquiry into the person’s national origin.

The critical interview
The job interview obviously is critical. During that meeting, the company’s managers should follow a list of carefully prepared questions in a “bullet point” format and not deviate from them if possible. That approach will make the interviewer less likely to ask embarrassing, improper or irrelevant questions that—although innocent—might make the applican’t feel that they are being subjected to illegal discrimination. The questions should cover all elements of the job description, helping the interviewer obtain the most relevant information about the applicant’s ability to perform the job.

An employer always should ask an applicant this question: “After reviewing the job description, is there anything that would prevent you from performing the functions of this job?” That will protect the employer from any potential violation of the Americans with Disability Act. Note that the question doesn’t ask if the person’s disability will be a problem, but whether the person can perform the work. It also lets the applicant know what the employer expects, so as an employee, they cannot be surprised if they are fired for failing to perform the requisite duties of the job.

An employer also should—but rarely does—ask a job applicant: “Will anything prevent you from being at work every day and on time?” Attendance is one of the leading causes for discipline and termination since it is an essential function of almost every job. An employer should clearly establish that the employee’s attendance must be prompt and reliable or disciplinary action will follow. Again, the goal is to prevent the employee from being surprised at the employer’s response.

Reference anyway
Checking a person’s job references has become a frustrating exercise because most companies have policies that only permit them to confirm past employment, and not give references per se, in order to lessen their own legal liabilities. Still, a diligent effort should be made to check an applicant’s references and background.

That serves several important purposes. It requires the employer to follow its own hiring practices. It can glean relevant information or insight about the prospective employee’s ability to perform the job in question. And it can be used as a defense against a future lawsuit alleging the employer had used negligent hiring practices. For example, if a person had been fired from their previous job for a physical assault, and the new employer failed to check that person’s references, a future incident could be the grounds for a lawsuit against the new employer.

Communicating the ground rules
Companies should be careful to ensure that all new employees read and understand the firm’s employment policies and sign a statement acknowledging that fact.

All employers should follow these basic hiring practices to protect themselves and their insurers. Obviously, this outline is not comprehensive and different situations will require different approaches.

Good communications is the most effective protection against hiring-related lawsuits. If all parties understand the company’s process and policies, they are more likely to be applied fairly to all. If no applicant or employee can complain they were not told the ground rules, none can complain about the company’s response to violations.

Art Lambert is a partner of Epstein Becker Green Wickliff & Hall P.C.’s labor and employment practice in Texas. He is a board-certified member of the Texas Board of Legal Specialization in the area of Labor and Employment Law and represents management in all areas of employment law, including discrimination and wrongful discharge litigation. Lambert litigates a wide variety of general business matters and lectures frequently on employment law topics. He can be reached at (214) 397-4330 or alambert@ebglaw.com.