RP Consultants ~
Business Consultants
Specializing in Labor and Employment Law
Hire Slowly. Fire Quickly. Do Background Checks. And Don't Skip Any Steps in Your Hiring Process.
|
Personnelly Speaking |
With employees at a premium it's easy to understand why a small business owner or a hiring manager might be tempted to grab the first candidate for a company vacancy who appears to have all the qualifications the job requires. But as a business consultant who routinely works with small and mid-sized businesses in areas of hiring and firing, I've found there's no substitute for being thorough. I tell my clients to develop a comprehensive process or know the process well and don't take shortcuts, even if the firm is desperate to hire someone.
The rule of thumb is to hire slowly and fire quickly. It's not just what ends up in court. It's also what ends up in a charge of discrimination filed with the Civil Rights Commission or the Equal Opportunity Commission. We see more charges of discrimination filed about terminations than we see lawsuits. Going that route, if a small business were held liable for a discriminatory practice, it could negotiate a settlement that could include reinstatement to a job with back pay and benefits. Without settlement, the case could go to court.
Most states are employment at-will states. This means that, generally, employees can be terminated without notice and without cause. But most courts and most legislatures have eroded that law in the past 20 years. Examples: discrimination and whistle-blower statutes. A body of public policy exceptions has been created by the courts over 20 years. Most recently, courts have ruled in employees' favor on same-sex sexual harassment and, in January, determined that harassers can be held individually liable for harassment.
Some general "shoulds" and "should-nots": Review your employee application forms. Make sure they're up-to-date and appropriate for the industry you are in. I still see employee applications that ask questions that are prohibited, like "Have you ever been hospitalized?" or "Have you ever filed a workers' compensation claim?" Both are against the law. And, most importantly, review your interviewing skills.
The canned forms available through business associations and office-supply companies might not include all the questions a small-business owner might need to ask, like whether applicants have a criminal history. If applicants don't have to answer that question, they're not going to offer. I recall one small-business client who hired an employee with an impressive financial background who later took the company for $40,000. When it was all unraveled, this person had been charged with embezzlement by his prior firm. This small company failed to do an adequate background check, or they would have found it. Therefore, check references and backgrounds thoroughly. My recommendation is that small businesses contact a reputable investigator who can conduct background checks for prices of $45 to $65 per candidate. You have to be careful to specify what kind of background check you want; if they do a background check on a person's finances, that requires specific authorization from the prospective employee and specific notification of the prospective employee.
Previous employers can offer factual information about a candidate you're considering for a job. We encourage small businesses to ask as many questions as they want to, and then slip one question in: "Would you rehire this person?" Listen to how they respond and if they respond. Be specific about expectations. Talk about what you expect of this person and what this person expects of you. Treat them as a serious investment.
I recommend that a job description be prepared before you begin the interview process. According to the Americans with Disabilities Act, the job description should specify essential job functions, what a person absolutely must be able to do, to do the job. If an individual can do the job and they are otherwise totally qualified, you have to hire them. But if a job description spells out a duty that an applicant is unable to perform because of his or her disability, a small business is protected from charges of discrimination based on disability. When you interview someone to fill a position in your business, remember to let the prospective employee do most of the talking. One mistake prospective employers make is talking too much, which can give the person being interviewed many clues about what you want to hear. As a rule of thumb, try to get the person you're interviewing to do about four times as much talking as you do.
Document and follow your company's processes. If your company has an employee handbook (and it should) that spells out the steps involved in a discipline and termination, then follow the process, and document the steps along the way. Don't put off the tough decisions; they don't get any easier, and you can end up with other problems and tougher problems. Make decisions objectively and execute them compassionately and consistently. If a termination is challenged in a civil process or through a court, the documentation helps attorneys defend employers. One of the things to dissuade a lawyer from taking a (wrongful dismissal) case is being able to defend your client by saying, "No, we warned the employee about this behavior and it continued."
Outsource some or all of your human resource functions by retaining a consultant. In general, growing businesses neglect to focus on the human resource side of their business, oftentimes until they are threatened with litigation or a civil rights charge. As a result, they learn what they should be doing differently. As a rule, employees represent the largest single cost in a business. People are an investment. The issue is important because people don't stay in jobs as long as they used to. The fact that you're hiring more might make it harder. There are a lot more regulations now than there used to be.
Although sexual harassment claims have received a great deal of media attention recently, employers should be aware that they may be liable for other types of harassment. Race, religion, and national origin-based harassment, although claimed less frequently than sexual harassment, are actionable under Title VII. Liability for such harassment could support awards for compensatory and punitive damages, plus back pay if warranted, depending upon the employer's size.
Age-based harassment is actionable under the Age Discrimination in Employment Act (ADEA), and disability-based harassment is actionable under the Americans with Disabilities Act (ADA).
A hostile working environment may be created by offensive conduct that is based on a prohibited characteristic, such as race or religion, and that is pervasive and severe.
Harassment might include jokes, pranks, or comments; and most harassment claims also involve claims of a hostile working environment.
Religious harassment is unique because, like sexual harassment, it may be quid pro quo (in exchange for), such as when a supervisor demands that an employee engage in a religious activity in exchange for a job benefit. It, too, may cause a claim of a hostile working environment. In a recent case, an employee claimed that a hostile working environment was created when a co-worker/supervisor called her a sinner, told her that she would go to hell, sang religious songs when she was nearby, screamed at her to repent, and held a prayer session with another employee at the claimant's work area. The court concluded that such activities might create a workplace permeated with discriminatory intimidation sufficiently severe or pervasive to alter the conditions of the complaining employee's working environment.
Another employer was found liable for creating a hostile working environment through racial harassment. In that case, a black employee was called "Buckwheat" and other derogatory names by coworkers; a black dummy was hung in the doorway near the employee's workstation; and graffiti referring to the KKK often appeared in the bathroom. However, in a national-origin-based harassment case a court found that ethnic jokes and distribution of a "Mexican Sex Manual" and "Polish Sex Manual" did not constitute harassment severe or pervasive enough to create a hostile working environment.
In another case, a court found in favor of a disability harassment claim made by a plaintiff diagnosed with multiple sclerosis. Her supervisor mimicked and ridiculed her speech and gait, spread myths about her, and created an environment of resentment and pity among her coworkers.
To avoid liability for harassment that is perpetrated by one employee on another, employers should take corrective action as soon as the offended employee makes a complaint.
In the race-based harassment case discussed above, the plaintiff complained numerous times to his superiors and to the personnel department. Although the graffiti was erased, significant remedial action was never taken. The employer did not investigate the plaintiff's claims and never warned other employees against using racial slurs. However, if an employer conducts an investigation and takes prompt corrective action, the employer should not be liable for the harassment.
In addition to acting promptly, employers should establish a comprehensive policy within their employee handbook that prohibits all forms of harassment. Last year, the U.S. Supreme Court held that employers could defend against some sexual harassment suits by demonstrating that although the company had an effective complaint procedure in place, the complaining employee did not utilize it. Given the court system's tendency to use the sexual harassment "model" when considering other types of harassment, it is likely that such a defense could be used to counter other harassment claims. Moreover, the absence of such a complaint policy might excuse an employee from reporting harassment. In that case, an employer may be liable for coworker harassment even if the employer was never informed of the harassment.
All business owners must guard against all types of harassment by promptly disciplining employees who engage in any type of harassment, and by taking effective remedial actions. The business owner, no matter how small the business, should be aware that inappropriate behavior-teasing or otherwise harassing an employee based upon characteristics that are legally protected-might subject the employer to substantial liability if such behavior is allowed to become pervasive or severe.
Hiring either just one or many employees can subject the small business owner to potential minefield of liability in many areas. The need to either review or create proper hiring procedures is mandatory in today's litigious society. Remember, an employee is your most important asset.
About the author
Robert Palow is president of RP Consultants, a Placentia, CA based company that specializes in labor and employment practices. He has more than 30 years of management and legal experience in the human resource field.
ABSSI / Industry Focus / July 1999
Copyright © 1999 RP Consultants All rights reserved[ Home | Company Info | Published Articles | Services | Feedback ]