Let’s face it — nobody’s perfect. Tom Brady occasionally throws an interception, and even the best managers and supervisors sometimes drop the ball on an employment law issue. Whether it is a tricky termination or a problem employee who just happens to have engaged in protected conduct, there is no “magic bullet” when it comes to minimizing the chances for making a mistake in compliance with workplace employment laws. Some common problems tend to arise on a fairly frequent basis, however. By being aware of those issues, an employer can at least minimize the chances of a “fumbled”
human resource (HR) issue.

To continue with the analogies, the hiring process is often much like the dating scene. Both parties are initially acquainted, whether by mutual acquaintance (hiring recommendation = blind date), single-party initial interest (resumé submission = pick-up line), or even the Internet (monster.com = match.com). Each party may enter the process with great optimism and hope, which are generally good things, but which also have a tendency to cloud objectivity, preventing a clear-sighted vision of what may be ahead.

Rare is the match made in heaven. As the relationship grows and both individuals start to notice each other’s flaws, it either works out as you adapt to one another, or it ends with both sides feeling disappointed. Here are some common tools that the HR professional can use to increase the odds of a successful, long-term relationship.

ENSURE ADEQUATE BACKGROUND CHECKS

A recent analysis from a national screening provider revealed that the number of discrepancies uncovered in employee resumés during 2010 more than doubled over 2009. The study found that 42 percent of screened employment histories contained an inconsistency between the information provided by candidates and the results of the verification check, compared with just 19 percent for the same period in 2009. For more information, go to: http://hireright.com/background-checks.

Background screening should be conducted to verify the application information and as a basic safeguard to ensure that someone with a violent criminal history, for example, isn’t being hired as a security guard. It is also essential to adopt a practice of consistency in performing background checks. Do not conduct checks only for “shady” candidates or those who seem like they might be hiding something. Such a practice could lead to costly liability from a disparate impact or even direct discrimination standpoint.

Employers will have less need to worry about disparate treatment claims if they treat everyone the same way. Conduct the same type of background screening on all applicants for the same job classification, and maintain the same response standard for background checks that come back with negative history. For example, if an employment offer is withdrawn due to the applicant’s falsification of his criminal history, it is important that other applicants who commit falsification are not treated dissimilarly.

Background checks are particularly important for individuals applying for positions that involve unsupervised customer interaction, access to sensitive information and other positions of trust. Claims for “negligent hiring” can arise when someone is injured or damaged by an employee in such a position, where the employer knew or “should have known” not to hire the individual for such a position. Employees who are to be placed in a position of trust with access to customers, their property, company funds, secure areas, confidential information, etc. should be screened to determine whether a prior conviction indicates a propensity to violate such trust. Employers should be careful, however, to ensure that they are in compliance with local, state and federal laws, such as the Fair Credit Reporting Act, when conducting background checks.

In addition to third-party background screening services, employers can take the following practical and inexpensive steps to weed out less-than-forthcoming candidates:

• Review resumé and application for inconsistencies.
• Look for gaps in time in employment history.
• Perform Google search and/or LinkedIn search to see if credentials match the resumé/application.

CONDUCT THOROUGH INTERVIEWS

The purpose of an interview is not to see whether the applicant would make a good buddy with whom to catch a game after work. An interview is the chance to go beyond the resumé and make objective observations about a candidate’s qualifications, demeanor, professionalism and actual interest in the available position. Interviewers should not gloss over important questions about work history, experience and desire to become a part of the company just because, for example, the interviewer and interviewee were both members of the same fraternity or sorority.

People are different. Studies have demonstrated that, even for an individual who has no overt prejudices based on race, nationality, sex, disability, etc., it nevertheless remains true that people are less likely to understand others who are different from them. Different people do not always understand each other or communicate effortlessly upon initial introduction. For this reason also, an interview should be conducted professionally and in a fairly scripted manner. It is not a casual conversation.

Prepare for the interview and be ready to ask tough questions. The individual’s resumé, application and any other submitted materials should be thoroughly reviewed. Ask the candidate about any apparent or possible inconsistencies. Find out why he left his previous employment, and do not be afraid to follow up his answer with more detailed questions. Remember, every applicant who is not hired has a potential “failure-to-hire” claim against the company. Even though such claims are not common, you should adopt a process that will allow you to maintain documentation that will help explain why you did not hire an individual — just in case.

THE IMPORTANCE OF DOCUMENTATION

Human resources professionals make thousands of employment–related decisions every year. While most of these decisions may sporadically need to be justified to a supervisor or union, there may come a time when one of the thousands of decisions made has to be explained or justified to a third party — like a judge or a jury. For a decision made months or even years ago, how are you going to prove that your actions were proper? The answer, many times, is through proper documentation.

During the interview process, it is important to take notes or otherwise document the reason that an individual is either accepted or rejected. This does not need to consist of a lengthy or even separately prepared narrative, but could be as simple as making handwritten notes on the application or resumé during or after the interview.

Imagine two candidates with identical resumés. One candidate interviews exceptionally, while the other admits that the experience claimed on his resumé is a little exaggerated and that he is only interested in the position because he “just needs a job.” If the rejected candidate brings a failure-to-hire claim six months later, the person conducting the interview may not even remember meeting either candidate. A couple of handwritten notes on the candidate’s resumé or application explaining the unfavorable admissions during the interview, however, could provide all the evidence needed to secure a dismissal of the claim.

This advice applies equally to the employment decisions that are made after someone is already hired. It is not uncommon for jurors, and even some judges, to take the attitude that “if it is not in writing, it did not happen.” Put differently, people often adopt the assumption that if something is important, it will be written up or somehow documented.

Employee discipline and terminations are often based not on a failure to meet performance benchmarks or easy-to-demonstrate error, but on conduct, which is not so self evident. Documentation of the conduct upon its occurrence gives great credibility to the validity of an employment decision made on that conduct. Even occurrences that “everyone knew” or were “common knowledge” in the workplace around the time they happened might be distant memories by the time the company needs witnesses to testify. A four-sentence handwritten memo to the personnel file can be the evidence that literally wins the case for the employer.

No matter how clear and effective your employment documentation may be, it is not going to help you if you cannot find it. Remember to develop and follow an appropriate document retention/ destruction policy, as well as an organized system or keeping track of employee discipline and performance. Supervisors need to be reminded to turn write-ups and evaluations into the appropriate department for filing in the employee’s personnel file. Department heads or other managers who maintain their own files on individual employees should be dissuaded from doing so, or at least be required to communicate with human resources to ensure proper process and content of their files.

TERMINATION: SO MANY ISSUES, SO LITTLE TIME

The majority of all employment litigation involves a single employee filing suit against his employer after being terminated. While claims might be raised about pre-termination harassment, discrimination or retaliation, the crux of most of these lawsuits focuses on the reason for termination. The former employee claims it was because of race/sex/age/disability, etc. and the employer has the burden to demonstrate the legitimate, non-discriminatory reason for the action.

Nowhere is good documentation in the human resources department more important than during the termination process. At the same time, the decision to terminate is often made rapidly based on circumstances, and there is often no time to follow your termination checklist in a cool and collected manner. Regardless of the reason for termination, whether foreseen or unforeseen, there are several key issues that are often overlooked in the process.

In most states and with most employers, it is an easy assumption that the majority of employees are “at will,” meaning either party can terminate the relationship at any time for any reason. However, it is worth taking the time to check the personnel file and any other relevant location to make sure the individual does not have a contract with the company that requires notice, cause or some other condition for employment to be terminated without liability. Long-term employees hired under different policies, changes in management, and other situations can lead to the existence of contracts in the back of personnel files that nobody knows about or remembers.

Upon termination, the employee may go back in his or her file and learn that, lo and behold, he had to be given 30 days notice prior to termination, or is owed a year of severance pay. Although not common, these situations do occur and every human resources professional should be aware of the contract issue when dealing with any employee termination, particularly for long-term employees, executives and employees hired under special circumstances. On a related note, ensure that you comply with termination procedures contained in any personnel policy. If your company has a progressive discipline policy, but an employee is terminated for a serious one-time offense, be sure to note the policy in termination documentation and emphasize the reason(s) it was not followed.

Keeping with the subject of proper documentation, the reason for termination should be documented and communicated in a clear manner. Where possible, ensure that all managers and supervisors who participate in the termination decision agree on the reasons therefor. Witnesses with inconsistent stories do not bode well for a company during trial, and create an appearance of pretext.

Keeping proper termination documentation also allows for horizontal symmetry. Particularly for large employers with a higher overall volume of terminations, the termination must be consistent with the way other employees have been treated under similar circumstances. Good documentation and a consistent process allow this factor to be checked with more reliability and ease. When preparing termination documentation, review of other records is as important as what is being created. Make sure other employees have been treated the same way under similar circumstances. Further, check the employee’s own records to ensure that the documents support the reason for termination. If an employee is terminated for poor performance, but has a file full of glowing performance evaluations, the termination documentation needs to reflect the inaccuracy of the evaluations or at least provide rock-solid evidence of the failed performance.

Also essential in the review process is making the determination as to whether the employee has recently engaged in protected conduct. As most human resources professionals are well aware, most
of the laws that regulate workplace fairness and non-discrimination contain provisions that prevent employers from retaliating against employees for any conduct that is protected by that particular law. For example, if an employee complains about racial comments in the workplace, Title VII provides that it is unlawful for that employee to be disciplined, demoted or terminated for making those complaints, even if they later prove to be unfounded. When disciplining or terminating an employee who has engaged in conduct that could be considered to be protected under state or federal statute, it is essential to avoid the appearance of retaliation. Most often, claimants attempt to prove retaliation by a showing of temporal proximity: “I complained about sexual harassment by my boss and the company fired me a month later.”

All too often, employee complaints that involve accusations of discrimination or harassment are coupled with other difficulties in the workplace. Poor-performing employees who are being reprimanded and frequently counseled by their supervisor may have made a complaint to HR that the supervisor is harassing them or discriminating against them. Other situations that involve poor performance, misconduct or other behavior that warrants discipline or termination often give rise to tensions between employees, perceptions of unfair treatment and subsequent complaints that may include accusations that are technically protected activity. In those situations, the concerns must be carefully investigated and documented, and any adverse action against the complaining employee (even if months later) should be taken with accompanying documentation and solid evidence in support. Decision makers must be educated to recognize and properly react when perceived “insubordination” is actually an employee following reporting procedures to complain about his good-faith belief in an unlawful practice. Retaliation claims and cases are on the rise, and employers need to be vigilant against this threat of liability.

Employers face difficult hiring and firing scenarios on a daily basis. By integrating some basic safeguards into your HR routine, you can minimize the botched plays, and keep your organization a winner.