1. HIRING AND MANAGING EMPLOYEES Presented by Megan M. Ruwe (612) 604-6711 mruwe@winthrop.com

2. Pre-Employment Employers can be liable for discriminatory hiring practices. An employer may be liable for negligent hiring if: –A third party suffered a compensable injury; –The employer had a duty to exercise in hiring; –The employer breached this duty; and –Causation exists between the employer’s breach and the harm suffered by the plaintiff.

3. Pre-Employment Employers may be insulated from liability if they have adequate pre-employment screening in place and utilize proper hiring procedures.

4. Effective Job Applications Applications should not be processed unless they are fully completed. –All gaps should be explained before the applicant is interviewed or during the first interview. Keep a written record of all information submitted regarding an applicant.

5. Job Interview Interview questions should focus on the applicant’s ability to successfully perform the job duties which are fundamental to the position being filled.

6. Job Interview Interview topics that should be treated with care: –Age –Family/Marital Status –Military Service –National Origin –Pregnancy –Religion –Sexual Orientation –Genetic Information

7. Job Interview –Dates of Graduation –Arrests and Convictions –Citizenship/Birthplace –Color or Race –Court Records –Disability –Drug use

8. Employment Contracts Inform the applicant of any employment agreement, including restrictive covenants (non-compete, non-solicitation or confidentiality provisions). Explain that signing the agreement is a condition of employment with the Company.

9. Background & Reference Checks May be necessary, depending on: –Safety-sensitive positions; –The potential for lawsuits; and –The risk to the employer of hiring a dishonest, unreliable, unqualified or even dangerous individual. Work histories and references of prospective employees should be confirmed.

10. Background & Reference Checks The same investigation need not be performed for every applicant, but treat similarly-situated employees similarly. –Examples of legitimate business needs for background checks: Positions involving confidential information; Positions with access to corporate/customer funds or valuable property; and Applicants for managerial, supervisory, or policy-making positions.

11. Background & Reference Checks An employer should be careful to avoid a disparate treatment claim when using information obtained from background checks. In certain circumstances, an employee must request an applicant’s written consent prior to investigations of employment, education, references, licensing, public records information, and for the release of such information to the employer by third parties.

12. The Fair Credit Reporting Act An employer may hire a third party to conduct background checks. Benefits of using a third party: –Decreased legal exposure; –Avoid administrative burdens; and –Applicants may feel more comfortable with a third party conducting the background check.

13. The Fair Credit Reporting Act If a third party is used, the FCRA applies: –The employer must provide written disclosure to the applicant to obtain and use a consumer report; –The disclosure should be in a document that is separate from the application; and –The applicant must provide written authorization to obtain such a report.

14. The Fair Credit Reporting Act –If the consumer report results in a “no hire” decision, the employer must do the following: –Before the decision: Provide the applicant a copy of the consumer report; and Provide written notice of the applicant’s rights under the FCRA.

15. The Fair Credit Reporting Act After the decision: –Notify the applicant of the adverse action; –Give the applicant the name and contact information of the consumer reporting agency used; –Inform the applicant that the consumer reporting agency did not make the decision to take the adverse action against the applicant; –Notify the applicant of right to dispute; and –Notify the applicant that they may obtain a free report from the consumer reporting agency if such request is made within 60 days.

16. Pre-Employment Testing Pre-Employment Medical Exams The Americans With Disabilities Act prohibits employers from requiring medical examinations prior to offering employment. Offers of employment may be conditioned on results of a medical examination that occurs before employment begins (but after an offer has been extended).

17. Pre-Employment Testing Legal requirements for post- offer medical examinations: –Be consistent: Post-offer medical examinations should be given to all applicants for employment within the same job category. –All medical information must be kept confidential. –Ensure there is a business necessity for the examination.

18. Drug & Alcohol Testing State law may impose certain restrictions to testing. Generally, applicants may be tested when all job applicants with conditional offers in that same position are also tested. State law may require a confirmatory test.

19. The Offer The Offer Letter –Offer letters are used to summarize and memorialize the terms and conditions of employment: At-will employment (if applicable); Compensation; Benefits; and Any pre-employment conditions, such as passing a drug/alcohol test or pre- employment physical, or execution of a non- competition or non-solicitation agreement.

20. The Offer Job offers that involve confidentiality, non-competition, and non-solicitation covenants should be in writing. Employees subject to non-competition and non-solicitation agreements should sign the agreements before performing any services.

21. MANAGING PERFORMANCE

22. Performance Appraisals Useful in the disciplinary and termination processes. Can show patterns of poor performance and efforts to address performance problems. Poorly written/maintained appraisals can be a liability. If there is no sign of poor performance, the appraisal may be evidence that the employee was not terminated because of poor performance.

23. Considerations for Performance Appraisals Evaluate employees based on behaviors and traits that are related to the job. Performance appraisals should be based on objective and measurable criteria. Provide specific and candid assessments of the employee’s abilities. Train managers to conduct performance appraisals.

24. Guidelines for Conducting Performance Appraisals Obtain as much information as possible so you may accurately assess those who work for you. –Obtain input from colleagues, customers, and other managers. –Employee self-evaluations can be useful.

25. Guidelines for Conducting Performance Appraisals Prepare in advance for a review meeting. Have specific criteria/objectives for the meeting. Treat all reviews as important: –Don’t postpone or cancel a review. –Schedule adequate time and don’t allow any interruptions. –Conduct reviews on a regular basis.

26. Guidelines for Conducting Performance Appraisals Be direct and honest with each employee. Allow the employee to participate. Don’t compare employees. Remember: A performance review is not your only chance to review an employee’s performance: –Hold periodic and ongoing progress reviews with all of your employees. –Do the same when good performance occurs. –Address problems immediately when they arise.

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