How To Hire, How to Fire
© 2002 Door & Access Systems
Publish Date: Winter 2002
Author: Naomi Angel
How To Hire, How to Fire
By Naomi Angel, DASMA Legal Counsel
Editor's Note: This is part one of a special two-part series on the critical legal aspects of hiring and firing. In this first part, Naomi offers helpful counsel on the hiring process. Part two will focus on vital aspects of terminating employees; it will appear in our spring 2003 issue.
Are you ready to defend yourself in court against a disgruntled employee? To avoid this costly situation, you must effectively and legally recruit, interview, hire, and fire.
Here’s a helpful checklist for the hiring process:
Do’s and Don’ts for Recruiting
- Avoid language that states or implies a discriminatory bias. Forbidden words:
- "Recent graduate"
- "Girl Friday"
- State that you are an Equal Opportunity Employer. Make sure that your statement covers all protected classifications of employees, including additional classes that may be protected by state law or local ordinances.
- Describe essential job functions and include any physical requirements, such as, "Must be able to lift 25 pounds." Applicants that can’t meet the requirements can decide not to apply.
Do’s and Don’ts for the Application and Interview
- Don’t ask about age, birthplace, or graduation dates.
- Don’t ask about marital status, childbearing plans, family obligations, number or ages of children.
- Don’t ask pre-employment questions that fish for medical/disability information.
- Do ask if applicant can lift 25 pounds, but don’t ask if applicant has a medical condition that would prevent him/her from lifting the weight. Forbidden questions:
- "Do you have any physical disabilities or restrictions?"
- "Are you taking any prescription drugs?"
- "Have you filed any worker's compensation claims?"
- A job offer may be conditioned upon satisfactory results of a post-offer medical exam, as long as ALL who have received conditional offers are required to take the same exam.
- Do ask about criminal convictions, but don’t ask about arrests.
- Do include an "At-Will Disclaimer" that clearly indicates employment is for no specific duration, can be terminated at any time for any reason or no reason, by both employer and employee.
- Do include a statement, acknowledged by the applicant, that all information on the application is complete and true. Warn that any misrepresentations or omissions may result in termination or the denial of an offer of employment.
- Do have the applicant sign a "references release," giving permission for release of information from current and former employers.
- Do talk about your organization and its business. Describe the position, its essential duties, necessary qualifications, location, hours, etc.
- Do pay attention to the applicant’s employment history. Ask questions about gaps, short-term jobs, or frequent job positions.
Do's and Don'ts for Reference and Background Checks (see Spring 2000 article for more on this subject)
- Always check references, especially from former employers. If someone is injured because your employee is involved in a job-related activity that you would not have assigned if you had had more information (obtained from a background check and/or references), you could be sued for negligent hiring!
- If the position involves driving, check the applicant's driving record.
- If the position involves handling money, get applicant’s permission, and do a credit check. Comply with the Fair Credit Reporting Act. If the applicant was not hired because of the credit report’s results, you must notify the applicant in writing.
- If you want a criminal background check, hire a reputable investigative firm. Don’t make that investigation yourself, as privacy issues can be involved.
- Pre-employment drug testing is usually allowed, but consult legal counsel and check with state law before testing.
When writing a formal job offer, specifically reiterate the "At-Will Disclaimer" found in your employment application. Be careful to write the letter so that it can’t be interpreted to be a binding employment contract. Clearly state any conditions on the offer such as successful completion of a medical examination.
In part two, we'll discuss the important aspects of proper termination of an employee.
Naomi R. Angel serves as legal counsel to industry associations and practices with the Chicago law firm of Howe & Hutton, Ltd. She can be reached at 312-263-3001 or firstname.lastname@example.org.