As the saying goes, the best defense is a good offense. The same applies in the context of protecting employers from litigation. “Offense” — particularly at the preliminary stages of the employment relationship — translates to preparation.
The hiring process, in many respects, starts long before an employer posts a job opening. In all likelihood, your company/organization has established application forms, positional requirements, interview protocols, and an onboarding or orientation program. However, these forms and procedures need to be updated as the employment laws evolve.
Application forms are becoming an increasing focus of Equal Employment Opportunity agencies and plaintiff’s firms alike. Questions that were routinely asked in the past may not pass legal muster any longer. For example, “ban the box” laws precluding employers from asking an applicant whether he or she has been convicted of a crime have recently been adopted by multiple states and cities. Revising application forms to comply with applicable legal requirements like “ban the box” is an essential and easy way to avoid litigation.
The next step in the hiring process is screening the candidates. During this stage, pay close attention to an applicant’s work history. Significant gaps in employment and/or jumping from job to job can be red flags. They may not foreclose an applicant from a particular position (and indeed, some states have gone as far as making unemployment status a type of “quasi-protected class”), but these red flags should generally be addressed during an interview in order to help stave off allegations of unlawful hiring practices.
Turning more specifically to the interview, employers must be cognizant of the questions asked and ensure that they do not create unnecessary legal risk. Unless directly related to a position’s job requirements, an interviewer should not solicit information about an applicant’s protected class(es), which include age, race, disability, family status, ancestry, religion, and gender. Questions concerning an applicant’s credit or military discharge are also off limits absent direct relation to the job, and even then there are limitations. Be mindful that seemingly innocuous questions may inadvertently reveal information related to a protected class. For example, asking an applicant when he or she graduated school can be used to elicit information on the applicant’s age. Interviewers should be aware of these subjects to avoid when devising questions.
An employer, however, can ask a candidate questions that are targeted at determining the applicant’s ability to perform the essential duties of the position. For example, protections from disability discrimination do not limit an employer’s ability to inquire whether an applicant can perform physical tasks required for a position (e.g., “Are you capable of safely lifting and carrying items that weigh up to 20 pounds?”). Additionally, questions concerning whether a candidate is able to meet a work schedule or travel demands do not run afoul of the illegal subjects identified above. Although the answers to these types of questions may be informed by an applicant’s disability, family status, religion, and so on, they are not illegal questions per se.
It is also important that employers follow through on reference checks. This serves two purposes: references can provide valuable insight into the candidate, and reference checks help insulate a company from negligent hiring claims.
Background checks, like reference checks, are an essential component of the hiring process that can bolster an employer’s defense to negligent hiring claims. However, background checks are subject to their own set of legal requirements. For example, the Fair Credit Reporting Act (FCRA) requires an employer who uses a third party to conduct criminal background checks to obtain the candidate’s written consent before obtaining the background check and to make specific written disclosures at different times in the background check process. Employers should note that state and local laws may vary in this area. Additionally, the Equal Employment Opportunity Commission warns against “basing employment decisions on background problems that may be more common among people of a certain [protected class].” Such circumstances can leave an employer vulnerable to a claim of “disparate impact” discrimination, which is based on the potential disproportionate impact on a protected class even if there is no intent to discriminate.
Once these foundational steps are complete and a candidate is chosen, a clear and concise offer letter serves as an important tool to protect against litigation. In addition to basic information about the position’s requirements and compensation, the offer letter should contain an “at will employment” disclaimer and outline the employer’s expectations. Employers may also want to consider including in their offer letters or other new hire documents jury trial waivers; alternative dispute resolution clauses requiring that any employment-related dispute be addressed through avenues like arbitration or mediation, rather than in the courts; or language shortening the statute of limitations for employment claims. These can be inexpensive ways to protect the company from “bad hires” and should be discussed with experienced employment counsel.
Once an offer is accepted, the employer should have an established orientation process in place. Sexual harassment avoidance training, an overview of the employer’s policies, and dissemination of a legally compliant employee handbook (along with the employee’s signed acknowledgment of receipt) play important roles in avoiding litigation now that the applicant has officially become an employee.
Part 2 of this column will address effectively documenting performance issues to protect the company from potential claims brought by the employee down the road.