Key to Good Hiring: Good Interviews

In these times of low unemployment, don’t you as an employer want to know the key to good hiring? After all, a bad hire means that recruiting dollars are wasted, projects remain incomplete and you may even lose customers or good employees who are tired of dealing with the subpar employee.

In an ideal workplace, each new hire performs the job duties well, fits into the culture, contributes new ideas and energy, forms close professional relationships with coworkers and increases the efficiency and effectiveness of the organization.

But how do you achieve that ideal? You have to know the key–good hiring requires good interviewing.

Okay, that should have been obvious. But in my 25+ years of experience in the world of employment, I’ve seen more poor interviews than good ones. See if any of these questions sound familiar:

  • How did you hear about this job?
  • Tell me about yourself.
  • How do you know so and so?
  • Do you know how to use a computer?
  • Do you like to work in a fast-paced (or casual, or family-oriented, etc.) environment?
  • Insert any other close-ended question that provides zero information here.

Open-ended questions that are too general like “tell me about yourself” will only inform you of whatever the applicant wants you to know. Close-ended questions that require just a “yes” or “no” answer provide you with no useful information.

We often treat interviews like we are trying to make small talk at a cocktail party. And we often have similar awkward results. So how do you interview well? Continue reading Key to Good Hiring: Good Interviews

Hiring Older Applicants Protects Against Age Discrimination Claims

As older applicants know, getting a new job when you are over 50 years old is difficult and the reason often involves age discrimination. Employers like to recruit youthful employees, but they overlook the expertise and loyalty that older workers offer. Graying workers are fighting back in the form of age discrimination suits, so employers would be wise to reevaluate their aggressive pursuit of young workers.

Texas Roadhouse, the restaurant chain, recently agreed to a $12 million settlement in an age bias suit brought by the Equal Employment Opportunity Commission alleging that Texas Roadhouse overlooked older applicants for server, bartender and host positions. The restaurant denied any wrongdoing, but after spending years in litigation and countless dollars on attorneys’ fees, Texas Roadhouse agreed to ensure that older applicants are considered consistently alongside younger ones. Silicon Valley is also facing allegations that no one over 40 is welcome to apply for a job (women of all ages face similar barriers in the tech industry).

In a more unique claim, PriceWaterhouseCoopers is the defendant in a class-action lawsuit targeting its college campus recruiting program. The 53- and 47-year-old named plaintiffs allege that their applications for entry-level positions were rejected because they did not fit PwC’s usual profile of a Millennial college grad starting a career in accounting. The plaintiff’s pleading scornfully mentions PwC’s brochures featuring lots of smiling 20-somethings. PwC admits that 80% of its employees were born in 1980 or later. Statistics like that make PwC a rich target for an age bias suit by an angry Baby Boomer or Gen X’er.

Smart employers are learning that the emphasis on hiring people under 40 can backfire. In 2016, more than 20,000 age discrimination claims were filed with the EEOC and another 2500 such claims were made to the Texas Workforce Commission that year.

Employers who fail to hire older workers risk more than just lawsuits. They miss out on the loyalty and tenure of older employees. While young people are prone to changing jobs frequently, older applicants tend to stay and be productive for many years. Society for Human Resource Management research shows that the employers they surveyed have discovered that older workers are more “mature/professional” and have a “stronger work ethic”. They found that contrary to stereotypes, older workers actually miss less work days and are excited to learn new things.

Mature workers often have broad networks and contacts. Their work and life experience mean they require little training or supervision. And many applicants born in the 1950s and 1960s have been using computers consistently since the Apple 1 was invented, so their technical skills are well-honed.

These realizations have caused some employers to adopt an “older workers first” preference in their hiring practices.

How can you as an employer avoid age bias mistakes with your recruiting and hiring and take advantage of the benefits of hiring older workers? Continue reading Hiring Older Applicants Protects Against Age Discrimination Claims

Simple Firing Form Keeps Employer’s Story Straight

An employer should always carefully document the reasons for firing an employee. But your termination documentation doesn’t have to be complicated.

I’ve attached a one-page form that you as an employer can quickly fill out and place in the employee’s file whenever you have to terminate the employment of one of your workers. But just because the form is simple doesn’t mean that you shouldn’t put some thought into the process.

Even though Texas is an “at will” employment state, it is wise to have good reasons for firing an employee. You need to stick to those reasons exactly when you complete the unemployment form from the Texas Workforce Commission, if you get a discrimination complaint from the Equal Employment Opportunity Commission and if you hear from the Department of Labor on a retaliation case.

Nothing looks more suspicious to a government investigator or to a jury than an employer’s termination story that changes over time. The all-important consistency of your answers begins with this document filled out on the day that the employee is terminated.

Clients are always asking me what they can do to prevent getting sued by an employee who was fired. Having good, nondiscriminatory reasons for the termination and documenting those reasons carefully are the first steps in preventing a lawsuit, or at least winning one.

Click here to download this simple firing form:

Termination Documentation Form 

Religious and National Origin Discrimination in Heated Political Times

It is easy for employers to lose sight of the obligation to protect all employees regardless of national origin or religion with all the heated political rhetoric we hear right now. But it is still against every federal and state civil rights law for an employer with 15 or more names on the payroll to allow any workplace harassment or discrimination on the basis of where someone is from, what language they speak or what religion they practice.

Since 2001, religious and national origin discrimination cases filed by Muslims and others of Middle Eastern ancestry have increased. Similarly, when illegal immigration is a hot topic, employees of Mexican heritage are often targeted for discrimination.

The Equal Employment Opportunity Commission now receives approximately 3000 charges each year about religious discrimination and 9000-10000 charges of national origin discrimination in the workplace.

In some circumstances, the discrimination is quite blatant.  In Huri v. Office of the Chief Judge of the Circuit Court of Cook County, Illinois (7th Cir. 2015), the Muslim plaintiff of Saudi Arabian origin alleged that her supervisor was a devout, vocal Christian who was unfriendly to her from the beginning. The supervisor allegedly referred to one of Huri’s colleagues as a “good churchgoing Christian” while calling Huri “evil”.  The supervisor reportedly also made a show of saying Christian prayers in the workplace while holding hands with employees other than Huri.

Any employer should be able to quickly recognize the legal and morale implications of such behavior and correct it. But other questions arise when well-meaning employers are confronted with an employee who may be from a culture or religion that the employer is unfamiliar with. That’s why in 2016 the EEOC released guidelines specifically about preventing discrimination against employees on the basis of national origin. These guidelines join the EEOC’s specific guidance on the workplace rights of employees who are perceived to be Muslim or Middle Eastern and the EEOC’s guidance on best practices to prevent religious discrimination in business settings.

What does an employer need to do to prevent or address any hostility in the company towards an employee on the basis of that employee’s national origin or religion? Continue reading Religious and National Origin Discrimination in Heated Political Times

White House Fails Basic “Firing 101”

Note: This is not a political post. President Donald Trump had the right and the authority to fire Acting Attorney General Sally Q. Yates last night.

From an employment lawyer’s perspective, the White House’s written statement about Sally Yates’ firing is a textbook example of how I advise my employer clients not to behave. https://www.whitehouse.gov/…/statement-appointment-dana-boe…

“The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. . . . Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.”

We employment lawyers encourage our business clients to leave a fired employee with his/her dignity. I would never suggest an employer use loaded words like “betrayed” and “weak” or to impugn a long-term, high-ranking employee’s integrity during a job termination meeting. It is ill-advised in most industries to burn bridges like this or to set your business up for a lawsuit by a scorned ex-employee.

Sometimes terminating an employee’s job is necessary. For advice on how to fire in a more beneficial way, read my blog post on firing without fear.

Requiring a “Full Recovery” May Violate Disability Law

Have you ever asked an employee for a doctor’s note confirming that the employee is “fully” recovered from an injury or illness as a condition to returning to work? If so, you may be violating the Americans with Disabilities Act (“ADA”).

I have often talked employers off the ledge of demanding that an employee present a “full release”. Ever since George H.W. Bush signed the ADA into law in 1990, it has been risky to assume that an employee must return to “full” duty after surgery, a serious illness or an injury. The employer must try hard to put the disabled employee back to work, but job duties may have to be modified, reassigned or eliminated to reasonably accommodate the worker.

The Equal Employment Opportunity Commission’s guidance, “Employer-Provided Leave and the Americans with Disabilities Act”, released last year, states that an employer is in violation of the ADA “if it requires an employee with a disability to have no medical restrictions—that is, be 100% healed or recovered—if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship.”

Whole Foods was recently sued for not putting Yolanda Toolie back to work when she returned from a spinal fusion with a 10-pound lifting restriction. She says that Whole Foods made her stay on unpaid leave for almost six months until she was fully cleared by her doctor, instead of finding a way to accommodate her restricted ability. After a second surgery, she alleges that Whole Foods fired her because she wasn’t eligible for Family and Medical Leave (which she would have qualified for if she had been allowed to work after the first surgery without the requirement of a “full recovery”).

If these allegations have any merit, Whole Foods could have avoided this suit if it had gone through the reasonable accommodation process with Toolie, a deli clerk, and found a way to put her back to work despite her lifting restriction. Maybe someone else could have lifted the product boxes while she operated the slicer, for example, or maybe she could have transferred to the Whole Foods bakery, where the heaviest thing she would have lifted was a loaf of gluten-free organic brown rice bread.

Putting an employee on indefinite unpaid leave is the accommodation of last resort, since the employee will not receive a salary while not working. Instead of telling an employee to stay home until he is back to 100%, the following reasonable accommodation process should be followed: Continue reading Requiring a “Full Recovery” May Violate Disability Law

2017 New Year’s Resolutions for Employers

At the beginning of each year, I encourage my business clients to make some New Year’s resolutions to achieve better compliance with the myriad employment laws. Based on what many of my clients are telling me and what the courts and enforcement agencies have on their agendas, here are the employment matters that you could improve in 2017:

  • Immigration compliance: President-Elect Trump has promised strong enforcement of the immigration laws. Many of those enforcement efforts will affect employers, such as mandatory use of the E-Verify system to double-check the legal status of every new hire. Even before that requirement is put in to place, resolve to correctly complete the mandatory new I-9 form for every new hire. The best way to make sure the I-9 is correctly completed: consult the government-published Employer’s Guide to the I-9, particularly the color pictures that show you exactly what a valid permanent resident card, for example, looks like. Also, be prepared that some of your employees may lose their work eligibility under the new administration, including young people (known as the Dreamers) who became eligible under the Deferred Action for Childhood Arrivals (DACA) program in 2012.
  • Market rate on salaries: Texas’ unemployment rate was sitting at 4.6% at the end of November 2016. Amarillo’s rate was 3.0%. Economists consider 3% to be full employment, meaning you as an employer maybe finding it difficult to attract and keep the talent that you need. I am always surprised therefore when my clients don’t keep up with the market data on salaries. Resolve in 2016 to tap into the data available on the Bureau of Labor Statistics for your industry and your location to really analyze whether your salaries are sufficient. Employees will also be looking at Salary.com and Payscale.com, so you need to do the same.
  • Improve your PTO offering: I am amazed when I am drafting or revising my client’s employment handbooks how little paid time off many local employers offer. Many don’t give an employee any vacation, sick leave, personal days or other paid time off during the first year and then rarely allow more than five days per year after that. This will not attract top talent or create long-term loyal employees, I promise you. Particularly if you are hiring millennials or need an educated workforce, you need to up your game on PTO. My 22-year-old son was hired in 2015 by a consulting firm in Washington, D.C., right out of college (with a degree in economics and a master’s degree in business analytics) and offered three weeks of PTO that started accruing immediately. After one promotion, employees at his company get four weeks of PTO. I’m not arguing that every job merits that much PTO, but resolve in 2017 to at least consider that two weeks per year should be the minimum to improve your hiring, increase your retention, rejuvenate your employees every year and allow your employees to deal with the inevitable ups and downs of life. As an employment lawyer, I know that most employee lawsuits arise after the worker leaves your employ. Keeping your staff reasonably happy and loyal by providing better PTO will provide you with other benefits too, but I like it because you will spend less time with me in court and instead we can just have lunch and talk about more pleasant topics.
  • Health Reimbursement Accounts: None of us know what the new administration will create to replace the Affordable Care Act, so I can’t give you much advice yet about your group health insurance offerings. However, employers with less than 50 employees who don’t offer group health insurance should resolve to consider using Health Reimbursement Accounts in 2017 because of the bipartisan 21st Century Cures Act that sailed through Congress and the President’s signature in December. That act included permission for small employers to now use HRA’s to pay for qualified out-of-pocket medical expenses for their employees and to fund individual health insurance premiums. In other words, employers can use pretax dollars to help employees to purchase their own insurance on the open market while capping the employer’s contribution at a reasonable amount. There are, of course, many restrictions associated with this opportunity, but it is worth consideration by smaller employers in 2017.
  • Good Documentation: Every employment lawyer would like for you to add this to your resolution list each year. Memories fail and managers move on, so written documents are often an employer’s only evidence of the nondiscriminatory reasons that certain employment actions were taken. Understand and resolve that performance reviews, reasons for bonuses and merit increases, violations of policy, attendance problems, changes in job duties and disciplinary actions will be well-documented in 2017. I’ll help with any of kind of documentation, but I highly recommend that you get me involved whenever the documentation is of disability or religious accommodations, FMLA, harassment claims, overtime or other compensation problems, egregious policy violations, demotions, final warnings, layoffs and terminations.
  • Gratitude: Resolve that you will say “thank you” more often to your employees in 2017. Studies have repeatedly shown that this one action can enhance employee engagement and loyalty even more than raises and promotions. Gratitude can also make your workplace so much more enjoyable for all of your employees.

 

After Hours Work Isn’t Banned, But Must Be Paid

Employers in the US aren’t banned from having employees check emails after hours like companies in France are, but after hours work can create significant overtime issues for American employers. As an employer, you must know the requirements for paying your hourly employees for their after hours work.

AP FRANCE EAVES DROPPING IN EUROPE I FRAhttp://www.usatoday.com/story/news/world/2017/01/04/heres-another-reason-move-france-no-after-work-emails/96148338/

New Employees Should Complete New I-9 Form

If you are hiring any employees, this is just a quick reminder that you need to start using the new I-9 form to confirm your new worker’s eligibility to be employed in the United States.

The new I-9 form was released on November 14, 2016 (look for that date on the form to verify that you are using the most recent one). You already can be using the new form, but it is mandatory that you are using that new form by January 22, 2017. My suggestion for making it easy on yourself is to begin using the new form today, or at least no later than January 1, 2017, so that you start the new year off right.

You do not have to update any of your completed I-9s on current employees with the new form. It is only mandatory that you start using the new I-9 with employees who are hired beginning in January 2017.

As you know, employers must assure an I-9 is completed on each new employee hired (citizen or otherwise) to document identity and authorization to legally work in the United States. The new employee must bring the proper forms of identification and work authorization so that you can complete the I-9 by the third business day of employment, or you can no longer employ that worker.

Mistakes happen on an incredibly frequent basis while filling out I-9 forms and employers get penalized substantially if Immigration and Customs Enforcement (“ICE”) audits an employer’s forms. Here is a guide to the most common mistakes and how to avoid them.

Another way to avoid mistakes on the I-9 form is Continue reading New Employees Should Complete New I-9 Form