There are numerous Federal, State and Local rules regarding hiring employees and most large companies maintain in-house legal counsel and human resource departments to deal with these rules. But, if you are a small company, these are unaffordable luxuries. Therefore, General Counsel, P.C. is here to give your company some simple common-sense guidelines for hiring employees:
Do not discriminate based on race, color, gender, religion, disability status, etc.
Respect the applicant’s right to privacy: marital situation, economic background, personal life.
Don’t imply things you can’t deliver: job security, benefits.
Observe all laws relating to minimum wage, hiring young or immigrant workers.
Follow the IRS guidelines for hiring independent contractors.
Follow all IRS and State new hiring requirements.
The Interview can be one of the most dangerous minefields an employer faces. Many federal, state and local laws limit the questions that can be asked about an applicant’s race, gender, disability, national origin, sexual orientation, marital status, pregnancy, age, family plans or other personal issues. These topics should be strictly avoided, as asking questions in these areas can give applicants who are not chosen grounds for a discrimination claim.
General Counsel, P.C. has prepared a checklist of preemployment inquires, which provides general guidance on the types of questions that should and should not be asked during the interview process.
Background checks are another large landmine that employers must treat with special care. The law varies from state to state. Some states allow for purposes of evaluating a person’s qualification for hiring. Some states ban all forms of background checks to prescreen applicants. Some states actually require extensive pre-employment screening requirements for certain professions such as schools, child care and healthcare facilities. Employers must look carefully at their state’s specific statute to determine its function, applicability, and compliance.
Under the Fair Credit Reporting Act, prior to engaging an outside agency to conduct a background check and prepare a "consumer report," the employer must obtain the applicant’s written consent. The employer must give the applicant a copy of the report’s findings and allow the applicant to challenge the findings before taking any adverse action.
Guidelines for Firing Employees
There often comes a point in the employer-employee relationship, where the relationship begins to sour. The employee may not be performing up to the standard expected, may be having behavioral problems or is simply unable to perform certain tasks. Even when an employee is performing well, your company may need to downsize and terminate an excellent employee.
Terminating employees is never a pleasant task, but with the guidance below, your company can avoid the employment landmines during the termination process.
Do not fire an employee in anger. This may seem obvious but, in the heat of the moment, self-control is paramount. Before discharging an employee, take time to evaluate the decision. A cooling-off period may not change one’s mind, but it will provide time to evaluate the decision and plan the termination.
Follow policy. If a company has written employment policies, including termination procedures, managers should follow them consistently.
Document the reasons for discharge. An employee file should provide a meaningful history that explains the dismissal. Whenever a termination is not documented with warnings or efforts to improve employee performance, a likely conclusion is that there was an improper motive for the decision.
Be truthful. An employer may be tempted to soften the blow by telling an employee that the company is cutting back when in fact the employee’s performance is unsatisfactory. Then, when the employer takes steps to replace the employee, these actions cast doubt on the employer’s credibility.
Offering a severance package. A severance package requires careful consideration. It may buffer the employee’s transition and reduce the level of animosity likely to lead to litigation. Any severance agreement which is contingent upon a release of claims against the employer should be drafted by an attorney otherwise an improperly drafted release may have no legal force.
Include an observer. Termination should be conveyed in person. Because termination interviews are fraught with emotion, an observer should be present. One person can communicate the decision while the other takes notes to document the meeting.
Use a termination letter. Rarely is a written explanation for a discharge required by law. Drafting a termination letter, however, allows time to carefully think through what is said and how it is said. The termination letter should be delivered to the employee upon termination and should convey the decision to terminate and a general statement of the reasons.
Be respectful. Termination proceedings should be handled with as much tact and consideration as possible, regardless of the reason. It may be helpful to use a neutral location, such as an empty office or conference room. If the meeting is insulting and disagreeable, the likelihood of legal action increases.
The guidelines above are not a complete statement of legal advice when terminating an employee. As every termination situation is unique, please contact General Counsel, P.C. to discuss how to properly terminate any employees prior to taking any adverse actions.