How To Get Sued: HR Errors to Avoid Mitzi D. Wyrick Wyatt, Tarrant & Combs, LLP

2. How To Get Sued: HR Errors to Avoid Mitzi D. Wyrick Wyatt, Tarrant & Combs, LLP 500 W. Jefferson Street, Suite 2600 Louisville, Kentucky 40202 mitziwyrick@wyattfirm.com

3. 10 Hire the First Person Who Walks In the Door, Regardless Of Qualifications

4. HIRING • - Searching for applicants • Newspapers or Internet advertisements: • factual and neutral • - Employment agencies: convenient but not a shield from liability

5. ADVERTISEMENTS/POSTINGS • Should accurately reflect the nature and scope of the position to be filled • Contain requirements of position • No impermissible factors/considerations (e.g., race, age, sex, etc). • EEO statement

6. Applications • All applicants fill out an applications/requests for transfer • Retain applications • All applications/resumes should go through HR

7. Date of application; Applicant’s full name; Past and current addresses; Current telephone number and e-mail address; Statement verifying legal eligibility to work in the United States; Position sought; An affirmation of the applicant’s ability to perform specified (listed) essential job functions (should be those set out on the job description for the specific position or positions for which the application is being accepted); Previous employment history; Educational history; Current employment status; Any special licenses or certifications; Compensation needs; Salary history; Emergency contacts; Reasons for leaving prior employment; References; Acknowledgment of requirement for post-offer drug test, and/or post-offer medical examination if applicable; Social security number (optional until after hiring) Applications

8. Applications • Release authorizing the employer to check the applicant’s references and to perform a background check on the applicant but employer must also get separate consent form for background check • Affirmation that the information is true and complete to the best of the applicant’s knowledge and warning that any misrepresentations or omissions can result in refusal to hire or termination. • Affirm the employer’s right to terminate employment at will and notify the applicant that, if hired, employment can be terminated with or without cause or notice at any time.

9. Do Not Include in Applications • age or date of birth • marital status • race • religion • national origin • questions about physical characteristics or medical impairments or conditions • arrest record

10. Electronic Applications • Must be retained like paper applications • If require a paper application, require of all candidates

11. Recordkeeping • Retain applications • Retain job postings/advertisements • Retain any screening criteria • Retain offer/rejection letters

12. 9 Do Not Train Your Interviewers

13. INTERVIEW • - Should only be conducted by persons • well-versed in employment laws • - Take good notes • If any notes are taken, they should scrupulously avoid any reference to anything other than applicant’s skills, experiences, demeanor, and responses to appropriate questions • Standardized interview forms and checklists are encouraged • - Interview questions are subject to the same limitations as application questions

14. Interviews • Interviewers should be trained in what questions can be asked and should not be asked • Give the interviewee the job description and go through the job description • Make sure job description is an accurate description of the requirements of the job • Ensure the applicant can perform all of the essential functions of the job

15. Interviews • If the interviewee says they can perform the functions, but require an accommodation or assistance of any sort - • Involve HR • Document the request

16. Interviews • Ask the same questions of all applicants • No derogatory comments or inappropriate references/symbols in your notes • a. Ex. Do not note that applicant is pregnant or missing a limb • b. Ex. Do not use male and female symbols or abbreviations for race (i.e. BM or HF) • Limit notes to observations about ability to perform job

17. Interviews • Do not ask questions about obvious disabilities or medical conditions • Always document anything out of the ordinary

18. Questions To Avoid During Interviews • Do not ask about disabilities or medical conditions • Donot ask about age/date of birth (including high school graduation) • Do not ask about family status or family plans (married, # of kids, pregnancy, or maiden name) • Do not ask about dependent children • Do not ask about arrest records • Avoid questions on memberships in organizations • Do not ask whether they own their own home

19. Questions To Avoid During Interviews • Do not ask about medications • Do not ask if the applicant has ever filed for workers’ comp, STD or LTD • Do not ask about the applicant’s unusual name or what country she/he is from • Do not ask about religious beliefs • Do not ask where born • Do not ask for a photograph; • Do not ask about citizenship

20. Other Questions To Avoid • Union activities • Sexual orientation • Are you a smoker? • Anything to imply that status/association may affect job • e.g., willing to work long hours despite having small children? • if female, comfortable supervising males? • special needs child affect your reliability?

21. Comments To Avoid During Interviews • Do not attempt to predict the future, especially on hiring • Do not imply an offer will be made

22. Comments To Avoid During Interviews • Do not make promises about employment status (e.g., no one gets fired around here) • No off-color jokes or ill-advised humor • Do not make promises you cannot keep

23. What Can You Ask? • How many years of experience for job for which you have applied • Educational background – schools • Degrees and certifications • Abilities/Skills/Knowledge that make them suitable for position • Training

24. The Paper Trail • Save all documents from interviews--notes, applications, etc. • HR should maintain documents • Lawsuits or EEOC charges over discrimination in hiring can be filed months/years later

25. But She Said It First • You cannot stop an applicant from raising some of the forbidden issues • If applicant volunteers information, document that applicant brought it up

26. Casual Contact≠Casual Interviews Do not turn casual meetings into job interviews Make sure applicant knows it is not a job interview Make no promises

27. Background Checks

28. Background Checks • EEOC has increased its scrutiny of employer hiring practices • arrest and conviction records • credit history

29. Criminal Record Checks • Check prior criminal convictions • Reduce negligent hiring claims • Obtain written permission • Do not check for arrests that did not result in a conviction • No blanket policies

30. Fair Credit Reporting Act • Applies to any employer, regardless of size, that uses a consumer report or investigative consumer report to make an employment decision • Not limited to “credit reports” • if 3rd party performs background check, disclose in writing that it will be done and disclose rights and report if take adverse action • need written consent form

31. Background Checks • Info from outside sources should be avoided • If obtain information from outside source, document who, what, when, where, why • Contact HR immediately to discuss • Make sure that you are allowed to use the info

32. Background Checks with Social Networking • Privacy Issues • Federal Laws (Electronic Communications Privacy Act of 1986, Stored Communications Act, etc) • State Laws

33. Background checks • Employer may accidentally discover protected information (i.e., age, marital or familial status, disability, religious affiliation, race, etc.)

34. Tips for Reviewing Social Networking Sites for Applicants • Fair Credit Reporting Act disclosure and reporting requirements if third party conducts searches • criteria must be applied consistently • conduct all searches the same way • may screen out certain groups if only rely on social networking sites

35. Medical Exams • Only post-offer • Make sure job-related and consistent with business necessity • Apply requirement consistently

36. Hiring Decisions • If choosing between applicants, make sure there is a record of why • Do not overlook existing employees as candidates for open positions • Notify all applicants of the decision • Verify eligibility to work in US and obtain appropriate documentation

37. 8 Do Not Review Your Offer Letter and Promise More Than You Can Deliver

38. OFFER LETTER • - The offer (oral or written) should: • Avoid any promise of employment for a specific period of time, expressed either by date or by the occurrence of a particular event • Avoid reference to a salary in annual terms or reference to a probationary period • Contain language reminding the employee that the offer may be contingent on certain conditions • Remind the employee that the employment is at will

39. What to Include in Offer Letter • offer of specific position • start date • employment at-will status • no contract/guarantee of employment • any conditions/contingencies • e.g., satisfactory background check, drug screen • time for acceptance

40. What Not to Include in Offer Letter • Annual salary without appropriate limiting language • Guarantee of period of employment or hours • Description of benefits without language allowing employer to change/revise

41. 7 Refer to Your Employee’s Gender, Race, National Origin, Disability, And Age As Much As Possible

42. DISCRIMINATION • - Anti-discrimination laws • Age, Race, National Origin, Gender, Disability • Tobacco users under Kentucky law • - FMLA • - USERRA • - State law forbids discharge for filing or pursuing workers’ compensation claims or jury service • - Beware of retaliation claims!

43. 6 Never Give Evaluations Or Feedback To Your Employees

44. EVALUATIONS • - Give honest and consistent • evaluations • Hard to defend a belated complaint that an employee had performance problems when the employee got regular raises, no record of discipline, and received no negative feedback on evaluations • Have employees sign their evaluations

45. 5 Do Not Respect Non-Compete Or Non-Disclosure Agreements

46. AGREEMENTS • - Ask every new employee about the • existence of non-compete and non-disclosure agreements from prior employment • - Be familiar with physical and temporal limitations in agreements

47. 4 Always Summarily Fire Your Employees and Be As Rude As Possible

48. TERMINATION • - Be sure the employee has notice and a • chance to mend his or her ways if possible • - If not, at least get the employee’s side of the story before the termination takes place and write it down • - Clearly articulate the legitimate reason(s) for termination • Handle termination with privacy and dignity • - Think of possible red flags before termination and consult counsel if necessary

49. 3 Never Follow The Policies In Your Employee Handbook

50. HANDBOOK • Be fair and consistent with employee • discipline • - If you do not enforce your policies, you eviscerate them and adverse actions become harder to defend • Keep yourself current on developments in the law and review policies, practices and forms regularly to ensure compliance