Avoid These 3 Common HR Mistakes

The numbers are simply staggering: In 2013, individuals filed over 93,000 employment discrimination charges with the Equal Employment Opportunity Commission (“EEOC”). The EEOC collected $372 Million in damages from employers during that time. Similarly, thousands of minimum wage and overtime claims were brought against companies under the Fair Labor Standards Act, and the Department of Labor collected $250 Million in back pay damages in 2013. Moreover, approximately 20% of the lawsuits filed in Federal Court in 2013 stemmed from an employment dispute. It feels like litigation roulette – you never know when your company’s time is up, but if you keep playing the game (i.e. running your business), eventually you will get sued.

Given this, companies should take steps to reduce the risk of becoming the next defendant, and put themselves in a solid defensive position. One way to do so is to avoid making one of these 3 common human resources (“HR”) mistakes:

Mistake #1: Failing to properly screen applicants. Remember the old principle “garbage in, garbage out”? Hire a loser and all you get is a loser employee you can’t get rid of fast enough. How about avoiding that hassle? Start with a laser-like focus on the employment application. Has the applicant never held a job longer than 3 months? If so, why do you think he would last any longer at your place? Has the applicant conveniently failed to answer the “reason for leaving” question after a former employer’s name? This silence should speak volumes. Worse yet, does it say something disturbing like “dispute with supervisor”? And how did the applicant answer the “conviction record” question? These answers and/or omissions all need to be addressed with the applicant. Trust but verify with reference checks; a recent survey of hiring managers revealed that 60% found false information on applicants’ job applications and/or resumes. Finally, never hire someone based solely on the recommendation of a friend or co-worker.

Mistake #2: Failing to terminate a poorly performing employee. Not all hires turn out well. Some employees are simply poor performers. But why are they still employed by your company? Are you running a business or a charity? Managers should give employees clear performance expectations. If an employee fails to meet them, he should receive progressive discipline. If the employee still does not improve his performance, the company should terminate his employment. Consider the alternative – lowered workforce morale and a less profitable company bottom line. Retaining a poor performing employee can also result in a good deed getting punished: if you terminate someone else for the same poor level of performance, and the terminated employee falls into a different “protected classification,” you will be sued for discrimination. Like bad wine, life is too short to work with bad employees. If you have the opportunity to terminate one, take it.

Mistake #3: Failing to recognize threat levels. You need to be able to recognize potential legal risks and plan accordingly. Does the employee you intend to terminate fall into one or more protected classifications (i.e. race, over 40, disabled, etc.)? Has the employee mentioned an “L word” – lawyer or lawsuit? Has the employee referenced the “EEOC” or “discrimination”? Has the employee cited chapter and verse of the requirements of a particular statute? Has the employee requested a copy of her personnel file? Is the employee trying to tape record conversations? If any of these have occurred, you are approaching litigation threat level “DEFCON 1.” To reduce the threat, make sure that you have all of the facts, have reviewed the employee’s prior disciplinary record, have looked at your disciplinary practice in comparable situations, have adequate documentation, and a legitimate business reason for the employment decision.*

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

* Portions of this article first appeared in the Wisconsin Institute of CPA’s October, 2014 magazine, The Bottom Line.

 

 

 

 

Legally Lethal Employment Interview Questions

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Most employers are aware that there are numerous obvious questions that are simply “off limits” and should not be asked of an applicant during an employment interview.   For example: How old are you?  Do you have a disability? Are you pregnant?

But, there are many other questions that, on their face, many not appear to be discriminatory, but are still legally troublesome.  These loaded questions either (1) imply that a protected characteristic will be a factor in the hiring decision, or (2) will elicit information that will put you on notice that the individual falls into a protected classification.  Unfortunately, if you don’t hire the applicant, he/she will assume his/her answer to one of these questions was the primary reason for being rejected, and file a discrimination charge.

Here’s several legally risky questions one should avoid asking during an interview:

1.  “Do you have kids?” Similarly, “Are you planning on having kids?”  “What kind of childcare arrangements will you make?”  Problem: gender discrimination; pregnancy discrimination; “caregiver” discrimination.  Do you ask this of all applicants, or only female applicants?

2.  “Your last name is so unusual.  What nationality is it?” Problem: national origin and/or ethnicity discrimination.  Do you ask caucasian applicant Michael Smith this?  Nothing good can come from the knowledge you obtain from this question. Control your genealogical curiosity, and don’t ask.

3.  “Is your spouse ok with moving to _______ for the job?” Similarly, “Will your spouse be ok if you have to travel a lot for the job?” Problem: gender discrimination; sexual orientation discrimination; marital status discrimination. Do you ask this of all applicants, or only female applicants?  What if they refer to their “partner” of the same gender, or that they’re divorced? Now you have knowledge of something personal that is irrelevant to whether the applicant can do the job.  Given that some states prohibit sexual orientation and marital status discrimination, in addition to gender discrimination, you face a triple threat. 

4.  “What year did you graduate from high school / college?”  Problem:  age discrimination.  Do you ask this of all applicants, young and old?  Or just those who look older? One can easily  approximate the applicant’s age with the knowledge of a high school and/or college graduation date.  A savvy applicant will assume you asked it to figure out how old he is, and suspect age discrimination is at play.

5.  “Have you ever been arrested before?”  Problem: race discrimination; arrest/conviction record discrimination.  The EEOC has taken the position that asking about arrests and convictions may lead to a discriminatory “disparate impact” on minority candidates.  Generally, asking about a past arrest that did not result in a conviction is very risky.  Several states and cities also have prohibitions on what can be asked regarding an applicant’s arrest and/or conviction record.    Employers should be aware of any state and local laws before asking these questions.  

Answers to the above questions are generally not relevant to whether the applicant can perform the job’s essential functions.  Bottom line – if there is no business reason to ask them, and often only leads to bad things (i.e. a lawsuit), don’t ask them.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
             @wagelaws

 

 

 

 

 

Unemployed – the Newest Protected Classification

Buried in the rush of the holiday season, on December 11, 2013 the City of Madison, Wisconsin amended its Equal Opportunities Ordinance to include “unemployment” as a classification protected from employment discrimination.   (A similar effort failed at the Federal level a couple of years ago).

In rather circular fashion, Madison’s Ordinance defines “unemployment” as “the status of not having a job or employmnt [sic], being available for work and seeking employment.”  Section 39.03(2)(oo).

Thus, companies with operations in Madison may not refuse to hire an individual simply because the person is unemployed.  Nor can they post advertisements (or job descriptions) that list as an eligibility requirement that the applicant be currently employed.  Employers are also prohibited from discriminating against unemployed applicants in terms and conditions of employment, so presumably they could not offer lower starting pay to unemployed applicants.

The Ordinance does throw employers a small bone.  It somewhat clarifies that unemployment “does not mean, nor is it unlawful discrimination to inquire into or to consider or act upon, the facts and circumstances leading to the the [sic] status or condition of unemployment.” (Yes, there are two typos in the Ordinance’s two sentence definition of “unemployment,” supporting the notion that this change was hastily made).

Beyond the typos, however, the problems with the Ordinance are numerous.  First, the Ordinance affords the temporary status of being unemployed the same legal protections as  immutable characteristics such as race, gender, national origin, and disability.

Second, (and perhaps incredibly), the status of “unemployment” is now the 27th “protected classification” under the Ordinance, joining other narrow protected classifications like “victim of domestic abuse.”  (What employer either refuses to hire or fires someone because of that?).  In short, employers in Madison face more legal compliance land mines.

Third, and most importantly, the Ordinance creates more questions than it answers, such as:

(1) Is an applicant who has been unemployed a mere one or two days at the time she applies for a job protected from discrimination?  Or does the applicant have to be unemployed for a period of several months? (It appears there is no minimum time limit).

(2)  Is an employer now, as a practical matter, prohibited from asking on its job application whether the applicant is currently employed, or for the name of the applicant’s current employer?   These routine employment application questions may result in the disclosure of information that the applicant is actually unemployed, thus putting the employer on notice, and giving the applicant a theory in which to file a discrimination claim if not hired.

(3) Does the Ordinance allow or prohibit employers from taking into consideration that an applicant had long periods of unemployment in the past, but is currently employed?  (It would seem to allow this).

(4)  Is an applicant who is currently employed at the time of application, but then becomes unemployed while the application is pending, considered “unemployed” and protected from discrimination under the Ordinance? (It would seem the individual would be  protected).

I have posed these and other questions to the City of Madison’s Department of Civil Rights Equal Opportunities Division, but have not received answers as of yet.  Stay tuned.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

Maybe the 37th Time is the Charm

Much of my legal practice involves defending companies against employment discrimination charges.  In so doing, I sometimes come across the “professional plaintiff” – an individual whose sole “job” appears to be suing potential, current or former employers in the hopes of extracting a monetary settlement.

Recently I discovered that a plaintiff who filed a discrimination charge against one of my clients had previously filed 36 discrimination charges against other companies.   In fact, over the last 10 years this individual has claimed that employers discriminatorily failed to hire him or fired him because of either his: (1) age; (2) race; (3) disability; (4) color; (5) sex; (6) arrest record; and/or (7) retaliation.  It reminds me of that old joke:  “I’m not paranoid – everybody’s just out to get me.”

We will, of course, use plaintiff’s prior litigation history to show his claims are frivolous and an abuse of the legal system.  Unfortunately, however, the company will still be burdened with the time and expense of defending itself.

What can we learn from this litigation nightmare?

(1)  Hiring decisions are critical.  An employer can’t ask an applicant whether he or she has sued other employers for discrimination in the past.  But if an employment application lists numerous short-term employment stints, or in response to the “reason for leaving” question the applicant cites “dispute with supervisor” or “forced to quit,” do not hire the person.

(2)  People sue for anything, and often.  Given how easy it is to file a discrimination charge, often with no “downside” to the applicant or former employee, litigation is not seen as a “last resort” anymore.  Rather, it has become the go to strategy for many individuals facing a workplace issue.  According to the EEOC there were over 99,000 discrimination charges filed against employers in 2012.  If your company hasn’t been sued for discrimination yet, it’s likely only a matter of time.

(3)  Don’t assume the government cares or will help.  People get their day in court.  Agencies like the EEOC will  accept a discrimination charge even if the plaintiff is a “serial filer.” The agency may be more skeptical of the merits of the charge, but the company will still have to expend signficant resources challenging those merits.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar &  @wagelaws

Have You Updated Your Employment Application Recently?

One routine HR document that often gets overlooked in the hectic life of HR professionals is the company employment application.  If you have not updated yours in the last few years, set aside some time to review it and make any necessary changes.  You may just avoid a costly lawsuit.

Here are a few sections that you should focus on:

1.  The Educational History section.  Does your application ask “what years” or “which years” the applicant  attended a particular educational institution?  Does it ask when the applicant graduated?  If so, delete all such “date” references.  Why?  An applicant who is not hired could claim the company discriminated against him/her on the basis of his/her age, arguing one could easily estimate “how old” the applicant was by looking at these dates.  To avoid this, just ask if they graduated, and (if you really need to know) “how many years” they attended.

2.  The Criminal History section.  Do you ask about an applicant’s criminal history?  If so, do you ask about arrests, convictions, or both?  Some states prohibit inquiries related to old arrests that did not result in convictions.   Some states limit how many years back an employer can consider convictions.  Some draw distinctions between felonies and misdemeanors.  And the EEOC doesn’t like you asking the question at all.  So before you ask, check your state and local laws to see if there are any limits or prohibitions on what you can ask related to an applicant’s criminal history, and revise your application accordingly.

3.  The Background Check section.  Do you contract with third party companies to conduct background checks on your applicants?  If so, do you properly disclose that fact to applicants?  The Fair Credit Reporting Act (“FCRA”) requires detailed notice to (and “authorization” from) applicants when an employer utilizes third party “consumer reporting agencies” to conduct background checks.  Certain documents are required to be given to applicants.  The FCRA also limits how and when an employer can utilize the results of such investigations in the hiring process.  In short, it is a legal minefield.  Avoid injury by  including the necessary language and forms in your employment application.

4.  The Personal Information Section.  If you ask for “Personal” information, make sure you do not ask for an applicant’s age (such as “DOB”), race, religion, creed, gender, national origin, sexual orientation, military status, disability status, marital status, pregnancy or family status, or any other “protected classification” under federal, state and/or local discrimination laws.  None of this is relevant, and most jurisdictions prohibit you from asking these questions. (Again, check your state and local laws).  Avoid creating Exhibit #1 in a lawsuit.

5.   The name of your company.  Did your company merge, get acquired, or adopt a new name?  If so, make sure the application reflects the new company moniker.  Otherwise, it is confusing and looks sloppy.  In fact, as you go through these and other sections, look for typos, misspellings and poor grammar.  “Clean it up” and you will create a more professional (and favorable)  impression.