Prevent Legal Problems in Hiring

Hiring

          The hiring process can be as nerve-wracking on the employer as the applicant. One of Murphy’s laws of recruiting is “The ideal candidate – isn’t.”

Employers often receive embarrassingly bad resumes. Have you ever seen any as flawed as these actual resume excerpts compiled by Accountemps?

“Here are my qualifications for you to overlook.”

“Thanks for your consideration. Hope to hear from you shorty.

“I am a great team player I am.” (And I do not like green eggs and ham!)

“I have lurnt Word Perfect 6.0, computor and spreadsheat progroms.” (But has yet to master the spell check.)

“Received a plague for Salesperson of the Year.”

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Glass Ceiling

Discrimination

            Is your company ripe for a glass ceiling claim against it? If you answered “What’s a glass ceiling claim?” then you may have already lost the battle.

            A glass ceiling suit is one in which lower level employees that are women argue that they are ineligible for promotion not because of a lack of ability on their part but because the upper levels of management in a company are reserved for males. The women seek equal advancement opportunities, often by filing class action suits.

            The latest glass ceiling case in the news concerns a class action gender discrimination suit against Wal-Mart, in which the plaintiffs claim that women are paid less than men in Wal-Mart’s stores even when they have higher performance ratings and greater seniority, receive fewer promotions and have to wait longer than men to be promoted.

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Demographic Trends Predict Future

Personnel Policies

            Did you catch the news last month that Texas has joined three other states and the District of Columbia as a majority-minority state, according to population estimates released by the U.S. Census Bureau?

Hispanics are now the largest minority group in Texas. According to population estimates based on the 2000 census, about 50.2 percent of Texans are minorities.

This demographic information should cause all Texas employers to once again reassess their policies and practices to make sure they are not vulnerable to discrimination claims. Both Texas and federal law make it illegal for an employer with 15 or more employees to discriminate on the basis of race, as well as age, sex, national origin, disability, religion and other protected classifications.

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Employment Myths

Discrimination, Termination

         One of my favorite websites is the mythbuster site, www.snopes.com. It gives me a place to exercise my skepticism about whether the Proctor and Gamble logo is secretly a satanic symbol, whether a picture of a great white shark attacking a British military diver hanging from a ladder suspended by a helicopter is real and whether Madelyn Murray O’Hair (who died in 1995) is circulating a petition to have all religious broadcasting banned from the airwaves (all untrue, by the way).

          I wish there were a similar website for the urban myths surrounding employment law. There is a lot of misinformation out there that is believed by both employees and employers. These myths cause confusion and employment law errors that can be costly.

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Dress Codes

Personnel Policies

When I moved to the Panhandle in early 1987, Amarillo had a very formal business atmosphere.  During the first three years that I practiced law, I never once wore pants to work.  A female lawyer’s standard uniform consisted of a skirted suit, pantyhose and heels, even on Fridays.

            The rules for workplace dress are much more relaxed now.  Local law firms have adopted Friday casual days.  Bank employees can often be seen in bank logo shirts and jeans.  Women in all occupations wear pants and sometimes even capris.  My suits hang in the closet unless I’m in court or making presentations.

            Amarillo workplaces are not alone in this trend towards more casual attire.  A recent Career Builders survey found that 78% of employees reported that their workplaces were casual, which was defined as “business casual” (khaki slacks and polo shirts, for example) by at least half of the respondents. More surprisingly, 20% of the respondents said their workplace was “very casual” (shorts, jeans and t-shirts).

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Supreme Court Expands Age Discrimination

Discrimination

         I often write about age discrimination cases in this column because they are one of the most common and expensive claims an employer faces. Older workers who lose their jobs aren’t shy about suing and they make very sympathetic plaintiffs to a jury.

Here I am writing about age discrimination again because this spring the U. S. Supreme Court released a significant age discrimination opinion that employers need to understand and beware.

            In Smith v. City of Jackson, the Court ruled that workers over age 40 can sue their employers for age discrimination by claiming that a neutral practice or policy unintentionally discriminates against these older workers. For example, a corporate training program that focuses on developing the skills of younger workers because of their potential longevity at the company could be said to be discriminatory against older workers and therefore adversely impact that protected class of people.

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Ethics in Employment

Ethics

            Some employers call my law office to find out what they can get away with legally: what loopholes in the law can they exploit or how can they get rid of an employee without taking the usual steps of giving the employee an opportunity to cure their performance problems.

            I am much more impressed by the employers I advise regularly, almost all of whom are just trying to do the right thing by their employees while earning a decent living for themselves.

            If I didn’t have an ethical requirement to keep my clients’ identities confidential, I would love to brag on the local company that doesn’t fire a person for the first failed drug test, but instead holds their job open while the employee completes rehab and then offers the worker one more chance.

            Or I could tell you about several clients of mine who voluntarily supplement the workers’ compensation wages benefit when an employee is hurt on the job so that the employee gets 100% of his wages while recovering rather than just the 70% paid by the workers’ compensation insurance.

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Termination Checklist

Termination

 “Severance”, “job release”, “termination”: no matter what you call it, firing an employee is one of the hardest tasks you face in running your business.

It’s also one of the riskiest, since at least half of the discrimination claims filed with the Equal Employment Opportunity Commission involve discharges, rather than other adverse employment actions such as demotions or failure to hire.

There are many things to consider before you fire an employee. For example, what you call the termination is important. Juries often side with the employee in discrimination suits when the employer just doesn’t say what he means at the time of the termination. It makes the jury distrust a employer who uses corporate double talk such as “job separation” to describe a simple firing.

Newsweek reported in August 1996 that corporations had actually used the following euphemisms during the downsizing craze of the mid-90s: “release of resources” (Bank of America); “career change opportunity” (Clifford of Vermont); “rightsizing the bank” (Harris Bank of Chicago); “strengthening global effectiveness” (Proctor & Gamble); “normal payroll adjustment” (Wal-Mart). Continue reading Termination Checklist →

Stray Remarks in Age Discrimination Cases

Discrimination

            I have often said in seminars that I have taught that the scariest kinds of employment cases I defend are age discrimination claims. Give me a good old-fashioned sexual harassment claim any day compared to a long-term employee over 40 who was fired so the company could “go in a new direction”.

            Age discrimination cases are difficult to defend because jurors, like all of us, want to believe that employers will be loyal to them when they get older. We all hate the thought of our parents or ourselves being fired simply because the employer no longer finds us useful as we inevitably age.

            This makes age discrimination cases very expensive. The median age discrimination verdict in federal courts from 1994-2000 was $269,350, higher than for any other type of federally prohibited discrimination. That only takes into account the damages awarded to the plaintiff, not the other $75,000+ that the employer spent on lawyer fees to defend the case.

            Employers know these facts instinctively, so they often come up with all kinds of ways to soften the blow when an older worker has to be fired.

            Euphemisms seem to breed like mice in age discrimination contexts. I’ve heard employers call their older employees “dinosaurs”, suggest that their idea of technology never progressed beyond a Selectric typewriter, and suggest to an employee that it is time to retire and go fishing, perhaps thinking that the older worker would suddenly act as if a light went on in his head and happily go out the office door whistling the theme from the Andy Griffith show.

            In real life these types of euphemisms only enrage the employee even more than the firing and lead to a nasty lawsuit. Continue reading Stray Remarks in Age Discrimination Cases →

Recordkeeping Critical to Avoiding Legal Liability

Documentation

                If you get sued by one of your employees, the first thing your defense lawyer will want to see is the employee’s personnel file. Many employers don’t know what to keep in their personnel files or don’t retain the records long enough.

               The most important records if you get sued will be those concerning your employee’s performance. Formal evaluations are helpful, but regular notes of day-to-day problems with your employees are even better.

               You need to get into the habit of writing a note to the file every time your employees perform well or poorly. The notes do not have to be pretty; they can even be on scratch paper. Just be sure to date each note.

               Other than performance notes, many other records should be readily available on each employee. The simple checklist at the end of this article should help you decide what employment records to create, file and retain so that you can defend yourself adequately against any employee claims. Continue reading Recordkeeping Critical to Avoiding Legal Liability →