Presentation on theme: "From Hiring to Firing: Practical Tips to Avoid Employment Claims Steven Gutierrez and Mark Wiletsky Holland & Hart, LLP."— Presentation transcript:
From Hiring to Firing: Practical Tips to Avoid Employment Claims Steven Gutierrez and Mark Wiletsky Holland & Hart, LLP
Agenda Minimizing Your Risk of Employment Claims: Hiring Pitfalls (Mis)managing workforce issues Termination Trip-Ups
Minimize Screening Exposure Consistent screening Complete job application – look for gaps/red flags Interview questions: job related & open-ended; avoid prohibited topics (protected characteristics, medical conditions, etc.) No blanket “No Hire” policy Conduct individualized assessment, but keep process objective
Avoid Common Hiring Mistakes Check references Plan the process: use single set of interview questions for position; rank candidates using same criteria Focus on skills, experience, and qualifications needed for particular job Review background check materials
Background Checks – Criminal Histories/Credit Checks Arrests vs. Convictions (new EEOC guidance) Credit Checks CA, CO, CT, IL, MD, OR, VT and WA
Social Media – Recruiting and Screening Employer use of social media in hiring context: recruiting candidates screening candidates Social media concerns: Posted information may not be valid Protected class status or activities EEOC: social media info akin to a “watercooler” conversation Privacy rights Fair Credit Reporting Act applies when third party involved Proving what you viewed State laws restricting access
Employee or Contractor Independent Contractor vs. Employee –Wage & Hour Division targeting independent contractor classification MOUs with 14 states –State Independent Contractor Laws (e.g., CO) –Expect reintroduction of federal Employee Misclassification Prevention Act
Employee Handbooks Review and Update: Clear disclaimer/at-will EEO policies FMLA – recent changes Breaks for breastfeeding Social media policy “Concerted activity” disclaimer Retain acknowledgement forms
FLSA Lawsuits 7,764 FLSA cases were filed in 2013, up 10 percent from 2012 which saw 7,064 cases filed Record High
Wage & Hour Pitfalls Interns Working from home On-call and waiting time Use of mobile devices Salaried - not the same as exempt Docking pay
Minimize Exposure – FMLA Issues FMLA Final FMLA Rule – eff. 3/8/13 – expands leave for military families and airline flight crews Leave to care for an adult child – new guidance
Minimize Exposure – Disabilities and Accommodations ADAAA Final Regs Expanded Disabilities –Additional “major life activities” included –Some impairments presumed a disability –No mitigating measures Reasonable Accommodation –Requires an interactive process –May include a job transfer Don’t forget about workers’ comp.
Minimize Exposure – Documenting Performance Document! Document! Document! Job descriptions Performance issues Be honest when evaluating
Minimize Exposure – Documenting Performance –Identify the problem –Be specific/give examples –Include history of problem –Include employee’s response/justification –Signature/acknowledgment –We expect immediate and sustained improvement. If there are any further issues, you will be subject to further discipline, up to and including termination of employment.
Workplace Investigations- Avoiding Pitfalls Not conducting an investigation at all Diving into an investigation without a plan Conducting a biased or lazy investigation Delaying the investigation Overpromising on confidentialit y
Workplace Investigations – Continued Failing to adequately document the investigation Failing to deter retaliation Reaching a conclusion before talking to the “accused” Failing to reach a conclusion
Drug and Alcohol Tests CO Amendment 64 –Task Force recommending that employers be allowed to terminate for any marijuana use, even if used off-duty – recent court cases –Update drug-free workplace and drug testing policies Random Alcohol Testing Doesn’t Violate ADA When Safety Concerns Justify Tests
MINIMIZING TERMINATION RISKS
Terminations – Plan Ahead Follow your policies and termination procedures Don’t make knee jerk decisions Treat similar situations similarly Consider potential risk/liability Document facts and reasons Get your ducks in a row!
Termination Checklist RISK ASSESSMENT Prior to termination, consider whether the employee: 1.Has a written employment contract? 2.Is covered by a collective bargaining agreement? 3.Has received verbal/written assurances that alter an at-will status? 4.Is a member of a protected group (under Title VII of the Civil Rights Act or other federal, state or local nondiscrimination law)?
Termination Checklist – Continued 5.Has disclosed a disability or medical condition? 6.Has requested leave or recently returned from leave under the FMLA, state disability leave law or workers’ compensation? 7.Has requested an accommodation under the ADA? 8.Is/was a member of the military? 9.Is pregnant?
Termination Checklist – Continued 10. Has complained of discrimination, harassment, unfair treatment or unsafe working conditions? 11.Has participated in an investigation or lawsuit involving themselves or another employee? 12.Has been given favorable/positive employee evaluations? 13. Was treated differently than other employees? 14. Will be surprised by the termination? Any “YES” responses should be reviewed and assessed before proceeding with a decision to terminate the employee.