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The Retail Employer

May 2006

The Hiring Process—Part THREE

by David E. Nagle

The consequences of bad hiring can be significant: diminished productivity, lost opportunity costs (in time invested in training, supervision, and turnover, and the disruption, expense and uncertainty of litigation. Hiring is an investment, and skill in managing the hiring process must be acquired. Like all skills, it takes considerable training, effort and experience to develop, and a review of all of the legal considerations applicable to the hiring process would be incomplete even if we devoted the entire two day seminar to that topic. This article summarizes the author’s presentation to the Advanced Employment Issues Symposium conducted in Las Vegas. It focuses upon (a) the way in which organizing the hiring process can help reduce the risk of litigation, and (b) selected issues where legal considerations require particular attention. One step will be featured in each issue of the Retail Employer.

Access the Candidates for the Position

Assuming that applications are required, no one should be viewed as an applicant until they have completed and submitted an application for employment. A carefully drafted application form, reviewed by counsel, will include, in addition to required information on the applicant (suitable to the position), an employment at will acknowledgment, consent to applicant screening procedures, acknowledgment that omissions and/or false responses may result in rejection of the applicant or termination of employment, and a signed release relating to disclosure of information regarding references.

Consider including an agreement to arbitrate disputes arising out of the application process, as well as any subsequent employment.

Make certain that the employer acts consistently with respect to treatment of applications in the hiring process, e.g., availability of applications (when, and from whom are they available?), acceptance of applications (when, where and how are they accepted?), retention/consideration of applications (for how long, and for what positions?)

Exercise caution in using applications requesting information for affirmative action tracking purposes, if you are not a government contractor.

Screening of applications must be done by those with adequate training in both HR and employment law.

With respect to resumes, determine policy with respect to consideration of resumes and follow policy consistently, not on a case-by-case basis. Is it treated as a request for an application, or as an application? Is it considered in the absence of a completed application? How does the employer treat resumes containing unsolicited information which it would be unlawful for employer to consider?

Pre-interview and post-interview tools may include applicant testing, as there is a wide range of “tests” available, including achievement tests, aptitude tests, interest inventories, manual dexterity tests, mental ability tests, performance tests, sensory tests, situational tests, in-basket tests, group exercises, work samples, role playing, assessment centers. Drug testing may be utilized. Employers need to be familiar with their obligations under the Fair Credit Reporting Act.

As to interviews, there is no requirement for interviews by law, but granting or withholding interviews is an employment practice which may be unlawful if discriminatory. Most charges arising out of the hiring process are based upon questions asked during the interview process, which is likely to be the most subjective, least-documented aspect of the hiring process. It is also the stage in the hiring process where the primary actors are least likely to be trained HR professionals. It is the stage, therefore, where HR has the greatest responsibility to provide training to those who will participate, and provide tools to assist them in conducting interviews, evaluating applicants, and documenting the role of the interview in the employer's legitimate, non-discriminatory selection process.

Casual, unstructured, unscored interviews create significant risk of subjective determinations presenting an opportunity for allegations of unlawful discrimination. However, the law does not require identical interviews in order to refute allegation of discrimination in hiring.

Be familiar with legal considerations in particularly troublesome areas of inquiry (these considerations are applicable throughout the hiring process, but frequently arise during the interview stage), e.g., age, ADA prohibitions on inquiries, issues relating to accommodation of physical and mental impairments, religious beliefs/practices, arrests/criminal convictions, birthplace, citizenship, national origin, bonding, credit records, military service, organizations and activities, marital and family status.

There is no justification for failing to conduct adequate reference checks. The benefits of checking references are substantial, a number of methods are available (including data verification services). Employers need to be familiar with the legal considerations in obtaining and providing references, and the potential liability arising from negligence in the hiring process.

This information was taken from an article by David E. Nagle of the LeClair Ryan law firm in Richmond.  He can be reached at (804) 343-4077, or dnagle@leclairryan.com.  The information originally appeared in an article he wrote for the Virginia Employment Law Letter, published monthly by M. Lee Smith Publishers, Inc.  For information on that publication, call 1-800-274-6774

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Providing Employee Feedback

Maybe in the past you practiced avoidance in hopes that a problem would go away but it only got worse. Employee feedback does not have to be difficult. Here are some helpful suggestions:

Focus on the behavior, not the person.

When personalities or relationships become the issue instead of how someone behaves, it can be a path to disaster. Always focus on the person’s behavior never on them personally. It is the behavior you want to change. Negative feedback should be about what they said, did or did not do; it should never be a personal attack. Successful managers find it helpful to have their thoughts prepared beforehand in bullet points so that they can concentrate on listening to the responses.

Insure Two-way Understanding.

More problems have been created because of a misunderstanding in communications. Feedback can create an uncomfortable situation and if not enough time is spent to insure the correct message got to the employee, misunderstandings occur. There are many techniques that can be used but here is a simple one you can employ during the discussion:

  • Now, tell me what you heard me say?

Remember it takes two to communicate. You may have articulated your thoughts well but the listener may have many barriers prohibiting them from understanding your message.

Next time the opportunity presents itself; ask the listener, “What did you hear me say?” and gauge the result for yourself.

This article is reprinted with permission of Mike Dunleavey, Executive Associate —Business Support Center—Retail Merchants Association.

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Building a Better Workforce: Navigating Termination Issues

Maintaining a positive atmosphere in the workplace is crucial to a company’s success as well as the success of the individual employees that comprise the company. Keeping the workplace free of pessimistic attitudes and maintaining a strong team sometimes requires firing employees whose skills and goals no longer match those of the company. After considering all options and making the final decision to terminate an employee, it is important to consider whether the employee will have grounds for a wrongful termination lawsuit and if so, how the organization will defend itself.

Because of laws protecting employees, legal issues must be considered when terminating an employee. To prevent an expensive lawsuit, employers should determine whether or not the basis for terminating an employee aligns with the following legal circumstances:

  • Even after specific instruction, the employee has repeatedly failed to properly complete assigned tasks
  • The employee has violated the company’s clearly established policies or code of conduct
  • Habitual absenteeism and tardiness
  • Sexual or physical harassment
  • The employee has been under the influence of drugs or alcohol on the job
  • The employee has lied on the job or misconstrued their qualifications

These circumstances do not encompass every reason for a legitimate termination, but they are all safe, legal reasons to do so. Even if an employer’s reason for terminating an employee is legal, they should keep documentation of their reasons in case the situation ends up in court.

In addition to the legal circumstances for firing an employee, here are some conditions that require caution when considering termination:

  • The employee has filed prior complaints about the workplace or company’s standards
  • The employee is over 40 years old (an age discrimination claim could be made)
  • The employee is a minority
  • The employee is under contract with the company
  • The company has made unfulfilled commitments or inconsistent statements to the employee
  • Many people are being fired at once – be careful not to fire a targeted group, for example, all women ages 30-32

If employers have any doubts about their reasoning for terminating an employee, they should contact an attorney about the legality prior to taking action to prevent expensive and time consuming legal issues.

After all precautions have been taken to ensure legitimate termination, producing the proper setting to inform the employee can ease the intensity of the situation. It is best to schedule the meeting early in the day at the beginning of the week and only allow direct supervisors of the employee to attend. Firing the employee on the most positive note possible could reduce or eliminate bitter ex-employee syndrome, a term used to described ex-employees who leave with a bad attitude and have the potential to spread negative publicity about the company. First, thank the employee for their efforts, then explain your reasons for letting them go without asserting blame. Don’t delay the news. Promptly inform the employee that they are being terminated and briefly explain why, and then remind them of previous warnings and records of performance.

Employees should be compensated for the work they’ve completed through their final day. Employers should express sympathy. If the employee has any questions, employers should answer them to the best of their ability. Employers should inform the employee that they can collect their personal belongings before they leave or arrange for proper shipment of their possessions. If the employee reacts violently, employers should politely ask them to vacate. If employees continue to be hostile, it may be necessary to call the police.

Terminating an employee can be very complicated, but it is sometime necessary to maintain a workplace that encourages positive attitudes and teamwork. One disgruntled employee has the ability to destroy the attitude and productivity of everyone in the office. For more information on the legality of terminating an employee, companies need to contact an attorney.

This article is reprinted with permission of www.ExpressPersonnel.com . Contact Mr. Lars Nordin at Lars.Nordin@ExpressPersonnel.com if you would like to be added to their distribution list.

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