Issues involving hiring and termination liability are two of employers’ most common questions and concerns. Here are 15 ways that you and your managers can reduce liability when hiring and terminating employees.
- Conduct a thorough and documented job analysis to determine the essential functions of each position in your organization and provide a foundation for selection and hiring practices. This analysis yields information about which duties are essential and also identifies the knowledge, skills, and abilities required. Documentation of the essential functions for each position is necessary to comply with the American Disabilities Act (ADA).
- Identify the actual qualification requirements needed for the position. Studies show that employers tend to overestimate degree and experience requirements, in particular, which may not truly be necessary for the position and could screen out potential candidates. This can lead to discriminatory practices.
- Ensure that you know the types of disabilities covered under the ADA. These have expanded over time and include a range of conditions that many employers often do not consider (i.e. depression, allergies, obesity, etc.). Current or prospective employees with the following disabilities may be covered by this law.
- Know your accommodation options. The Job Accommodation Network provides a great deal of information to employers on the types of possible accommodations that are appropriate to provide for certain disabilities. The sample accommodations cited on this website are useful and practical for many organizations to employ in order to make reasonable accommodations for employees with disabilities.
- Make sure that employment applications do not request certain demographic information including graduation dates (or other information that would yield data about the candidate’s age), questions about physical appearance and characteristics (such as height and weight), credit history, sex, gender, religion, national origin, marital/family status, schedules, and disabilities.
- Create a selection plan for each job you plan to hire for using the same selection procedures or consistently apply the same selection practices for all positions if standardized practices are necessary (i.e. if you use a background check for one applicant, use it for all applicants). All job applicants for a position need to be evaluated using the same criteria.
- Design structured and objective tools or processes to score applicants on job-related criteria, such as rating scales or interview forms. These can help prevent personal and non-job-related information from being used in the selection process.
- Pre-determine hiring questions so that hiring managers do not ask or consider inappropriate personal information. Training hiring managers in interviewing is also beneficial so that they are aware of appropriate and inappropriate questions and interview protocol.
- Avoid using non-job-related criteria to make selection decisions. Specifically, avoid using unemployment status or age (young or old) as factors when hiring employees. The EEOC is currently exploring these discriminatory practices in greater depth.
- Evaluate employment tests for validity, job-relatedness, and adverse impact. Selection tests need to be evaluated in terms of whether they are causing adverse impact for protected groups. In addition, usage of certain cut scores can also cause liabilities, if it results in adverse impact. Selection tests also need to be validated and directly related to the job. The Uniform Guidelines on Employee Selection Procedures is a helpful set of guidelines on the use of testing in the workplace.
- Do not use genetic information for hiring purposes. GINA (Genetic Information Nondiscrimination Act) prohibits the use of genetic information, such as family medical history, for hiring.
- Protect against negligent hiring. Employers should consider using screening practices such as background and reference checks and credential verifications (such as education, licenses, past work, etc.). Credit checks and motor vehicle reports may also be necessary for some jobs.
- Monitor pay practices, per the Equal Pay Act, which prohibits unequal pay for equal work. Per the law, all employees should be paid equal pay for equal work on jobs which require substantially equal skill, effort, and responsibility and is performed under similar working conditions. Pay comparisons and statistical tests should be conducted for employees completing equal work to ensure fair and equal pay practices.
- Document performance and non-compliance with policies. All incidents of performance (including conversations about the performance incidents, non-compliance with policies, corrective action taken, etc.) need to be documented in the event that your organization needs to terminate an employee. It helps to have an established performance management system to support supervisors and managers in documenting employees’ behaviors. Should your organization need to terminate an individual, it will need to have verifiable facts to back up its decision.
- Keep processes transparent. By providing job applicants or employees with fact-based reasons for your hiring and termination decisions, they are less likely to believe that other personal factors played a role in the decision (such as their race or gender). Oral or written feedback is advised.
We often find that liability problems emerge when employment decisions are not based on job-related and objective criteria, when practices lack consistency and equity, and when documentation is not being used. It’s important for HR and managers alike to be educated about how to prevent these liabilities.
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