Presentation on theme: "Thomas R. Revnew. Name: Askin For a Suit Product: Professional Business Attire Position Available: Sales Associate HR Department: Non-Existent Lawsuits:"— Presentation transcript:
Thomas R. Revnew
Name: Askin For a Suit Product: Professional Business Attire Position Available: Sales Associate HR Department: Non-Existent Lawsuits: Imminent
FAILING TO INCLUDE IMPORTANT PRE-HIRE POLICIES IN THE EMPLOYEE HANDBOOK
Your Handbook should include all company policies related to the hiring process. What type of policies? Here are the top five: Equal Employment Opportunity Policy; At-Will Employment Policy (Unless unionized); Anti-Harassment Policy; Drug and Alcohol Testing Policy; and Background Check Policy.
Condition employment on: Truthful & complete application information; Willingness to accept job assignment; and At-will employment status. Provide applicants and employees with notice of policies.
FAILING TO ESTABLISH ACCURATE JOB DESCRIPTIONS
Title: Sales Associate Hours: 40/week Education: 2 year degree from an accredited university Skills: Sales experience and a good attitude Position Description: The Sales Associate will sell clothing to our customers.
Accurate, complete and consistent job descriptions provide a baseline defense for discrimination claims. Inaccurate and incomplete descriptions invite complaints, claims and lawsuits. The Hiring Manager/Supervisor should establish qualifications for a specific job opening. These qualifications will set expectations from the beginning. HR should carefully analyze each job description (keeping in mind the duty to accommodate).
ASKING INAPPROPRIATE INTERVIEW QUESTIONS* (*OR WHEN THE HIRING MANAGER/SUPERVISOR DOES THE ASKING)
Work History Imma has 20 years of experience as a Sales Associate selling high-end fashion in a retail store; Imma speaks multiple languages; and Imma has numerous references. The hiring manager has called Imma for an interview because she looks great on paper, but...
If we do not hire Imma, she may claim it is because of her: Gender; Age; Disability; Religious beliefs.
Arent you too old for this job? Are you disabled in any way, shape or form? Have you ever been arrested? Do you have children? Questions NOT to ask: Are you a U.S. citizen or an alien who is legally permitted to work in the U.S.? Can you perform the essential functions of the job with or without accommodation? Can you work the hours required for this position? Questions you SHOULD ask:
Abercrombie & Fitch: Failure/Refusal to hire based on race and national origin=$50 Million Awarded. Voices of America: Failure/Refusal to hire or promote women=$543 Million Settlement. Winn-Dixie: Failure/Refusal to hire or promote women=$33 Million Settlement.
You require Imma to get a medical evaluation: Before offering her a position; The hiring manager tells Imma it is because of her SAD; and No other employee or applicant in the history of the company has ever been required to undergo a medical evaluation.
Minnesota law requires that an employer must do the following before requiring an applicant to undergo medical testing: Provide a conditional offer of employment; Test only for essential job related abilities; and Test all persons conditionally offered employment for the same position.
You run the following background checks on Imma You investigate her employment history; The Hiring Manager calls her references; You hire a third-party to run a credit report; and You check her criminal/civil litigation history.
Fair Credit Reporting Act (FCRA): All pre-employment reports by third parties are probably covered by FCRA. Four basic compliance steps under FCRA: Disclosure & written consent; Certification to Consumer Reporting Agency; Provide documents prior to adverse action; and Provide notice after adverse action. Minnesota Access to Consumer Report Act Must notify applicant in writing if subject of consumer report by agency; Include a box on disclosure form to indicate request for copy; and If screening, must include disclosure & box on application form.
USPS: Asking inappropriate medical history questions to disabled veterans=$95 Million Settlement. Lawrence Berkley: Pre-employment blood test=$2.2 Million Settlement. First Transit and First Student: FRCA violation for conducting unauthorized background checks=$43 Million Settlement.
Terms of Employment Salary of $41, to work at least 40 hours/week (approximately $20/hour or $800.00/week); Because Imma is paid a salary, Askin for a Suit concludes that she does not need to be paid overtime; and To be safe, Askin for a Suit requires Imma to sign an Agreement stating that she is not entitled to overtime.
Requirements for Overtime Exemption: To be exempt from paying overtime under the FLSA, generally a position must satisfy the following requirements: Pay more than $455.00/week ($23,660/year); Paid on a salary basis; and Performs exempt job duties. It does not matter that Imma signed an Agreement.
(1) Executive Exemption; (2) Professional Exemption; (3) Administrative Duty Exemption; (4) Outside Sales Exemption; and (5) Computer Employee Exemption.
Outside Sales Exemption Primary duty must be making sales or obtaining orders or contracts for services for the use of facilities for which a consideration will be paid for by the client or customer; and The employee must be customarily and regularly engaged away from the employers place or places of business.
Wells Fargo: improper classification as Computer Analysts=$12.5 Million Settlement. Auto Club: misclassification of insurance sales persons as outside sales representatives=$19.5 Million Settlement. Family Dollar Stores: improper classification of employees as managers=$35.5 Million Award.
NOT IMPLEMENTING A SOCIAL MEDIA POLICY
Imma -Founder of the Religion of Imma -Immaism Immas My job at Askin for a Suit stinks. I hate my boss. I would like to slap her silly. Imma All followers of Imma, I had a premonition=our god has instructed us to take communion (i.e. drink an entire bottle of wine). Praise be to God!
Askin for a Suit doesnt have a social media policy and Immas manager uses this information as the sole basis to terminate her employment. During the termination meeting, Immas manager tells her she is being fired because of the content of her Facebook page.
Mere Gripes are not protected. The National Labor Relation Board will likely protect charges where the Charging Party relied on social media to: (1) act with or by the authority of other employees; (2) initiate, induce or prepare for concerted group action; or (3) bring group complaints to managements attention. Stored Communications Act requires that employers have permission to access private social media pages. Cannot discriminate based upon religion.
American Medical Response: employee terminated for stating concerns about boss on Facebook=Confidential Settlement. Hillstone Restaurant: management reviewed a private, password-protected, invitation-only group the servers had created on MySpace=Confidential Settlement.
IGNORING AND FAILING TO DOCUMENT PERFORMANCE ISSUES
A written record of verbal and written warnings. Clearly explain specific problems, tied to production or standards. Give employee notice of the standards and apply the standards consistently. Before termination, consider: Discipline short of discharge. Reassignment, transfer or removal of duties. Resignation in lieu of termination. Issue a last chance warning. Whatever the issue, document, document, document (and apply your policies consistently).
An excellent tool for managers! Include items such as: Does the employee know the rule? Is the rule reasonable? Did you interview other employees and/or third parties (if necessary)? Are your notes accurate? Did you confront the employee (and, if so, did you document the conversation)? Have you disciplined (or not disciplined) others in the same way for the same behavior? Did you discuss the discipline with HR prior to issuing the warning? Did you send the paperwork to HR?
NOT TRAINING MANAGERS ON PROPER TERMINATION PROCEDURES
At-will employment means the employer or employee can terminate the employment relationship for any lawful reason.
Contract Theories Oral or Implied Contract; and Employee Handbooks. Tort Theories Intentional/Negligent Infliction of Emotional Distress; Tortuous Interference with Contract; Defamation; and Negligent Supervision, Hiring and Retention. Statutory Wrongful Termination Violation of Public Policy (i.e. MHRA, Title VII, etc.); Whistleblower; and Retaliation.
An excellent tool for managers! Include items such as: Manager and HR in termination meeting. Retrieve company property (keys, swipe card, laptops, passwords). Eliminate remote access, cut off and voic . Cancel any company credit cards. Notify appropriate people (employees, customers, clients, etc.). Review benefits (COBRA notice). Last paycheck.
NOT FOLLOWING PROPER POST-TERMINATION PROCEDURES
Last Paycheck: In Minnesota, an employees last paycheck must be issued with 24 hours (upon demand). Reference Checks: generally an employer may provide the following information about an employee or ex-employee without liability: dates of employment, pay history, job description/duties, training and education provided by the employer and facts related to acts of violence, theft, harassment, illegal conduct. COBRA Paperwork: Employer must notify plan administrator within 30 days after termination (plan administrator has 14 days from date of notice of the qualifying event to notify each participant and beneficiary of the right to elect coverage).