Transcript Mark Wiletsky & Steve Gutierrez

From Hiring to Firing:
Practical Tips to Avoid Employment Claims
Steven Gutierrez and Mark Wiletsky
Holland & Hart, LLP
Agenda
Minimizing Your Risk of Employment Claims:
 Hiring Pitfalls
 (Mis)managing workforce issues
 Termination Trip-Ups
HIRING PITFALLS
Minimize Screening Exposure
 Consistent screening
 Complete job application – look for gaps/red flags
 Interview questions: job related & open-ended; avoid
prohibited topics (protected characteristics, medical
conditions, etc.)
 No blanket “No Hire” policy
 Conduct individualized assessment, but keep
process objective
Avoid Common Hiring Mistakes
 Check references
 Plan the process: use single set of interview
questions for position; rank candidates using same
criteria
 Focus on skills, experience, and qualifications
needed for particular job
 Review background check materials
Background Checks – Criminal
Histories/Credit Checks
 Arrests vs. Convictions (new EEOC guidance)
 Credit Checks
 CA, CO, CT, IL, MD, OR, VT
and WA
Social Media – Recruiting and
Screening
Employer use of social media in hiring context:
 recruiting candidates
 screening candidates
Social media concerns:
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Posted information may not be valid
Protected class status or activities
EEOC: social media info akin to a “watercooler” conversation
Privacy rights
Fair Credit Reporting Act applies when third party involved
Proving what you viewed
State laws restricting access
Employee or Contractor
Independent Contractor vs. Employee
– Wage & Hour Division targeting independent
contractor classification
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MOUs with 14 states
– State Independent Contractor Laws (e.g., CO)
– Expect reintroduction of federal Employee
Misclassification Prevention Act
Employee Handbooks
Review and Update:
 Clear disclaimer/at-will
 EEO policies
 FMLA – recent changes
 Breaks for breastfeeding
 Social media policy
 “Concerted activity” disclaimer
 Retain acknowledgement forms
Employee Contracts
 Noncompete, nondisclosure, and/or nonsolicitation
 Invention ownership
 Offer letters
MINIMIZING RISKS
DURING EMPLOYMENT
FLSA Lawsuits
 7,764 FLSA cases
were filed in 2013, up
10 percent from 2012
which saw 7,064 cases
filed
 Record High
Wage & Hour Pitfalls
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Interns
Working from home
On-call and waiting time
Use of mobile devices
Salaried - not the same as exempt
Docking pay
Minimize Exposure –
FMLA Issues
FMLA
 Final FMLA Rule – eff. 3/8/13 – expands leave for
military families and airline flight crews
 Leave to care for an adult child – new guidance
Minimize Exposure –
Disabilities and Accommodations
 ADAAA Final Regs Expanded Disabilities
– Additional “major life activities” included
– Some impairments presumed a disability
– No mitigating measures
 Reasonable Accommodation
– Requires an interactive process
– May include a job transfer
 Don’t forget about workers’ comp.
Minimize Exposure –
Documenting Performance
Document! Document! Document!
 Job descriptions
 Performance issues
 Be honest when evaluating
Minimize Exposure –
Documenting Performance
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Identify the problem
Be specific/give examples
Include history of problem
Include employee’s response/justification
Signature/acknowledgment
We expect immediate and sustained improvement.
If there are any further issues, you will be subject to
further discipline, up to and including termination of
employment.
Workplace InvestigationsAvoiding Pitfalls
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Not conducting an investigation at all
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Diving into an investigation without a plan
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Conducting a biased or lazy investigation
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Delaying the investigation
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Overpromising on confidentiality
Workplace Investigations –
Continued
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Failing to adequately document the investigation
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Failing to deter retaliation
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Reaching a conclusion before talking to the
“accused”
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Failing to reach a conclusion
Drug and Alcohol Tests
 CO Amendment 64
– Task Force recommending that employers
be allowed to terminate for any marijuana use, even if
used off-duty – recent court cases
– Update drug-free workplace and drug testing policies
 Random Alcohol Testing Doesn’t Violate ADA
When Safety Concerns Justify Tests
MINIMIZING
TERMINATION RISKS
Terminations –
Plan Ahead
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Follow your policies and termination procedures
Don’t make knee jerk decisions
Treat similar situations similarly
Consider potential risk/liability
Document facts and reasons
Get your ducks in a row!
Termination Checklist
RISK ASSESSMENT
Prior to termination, consider whether the employee:
1. Has a written employment contract?
2. Is covered by a collective bargaining agreement?
3. Has received verbal/written assurances that alter
an at-will status?
4. Is a member of a protected group (under Title VII
of the Civil Rights Act or other federal, state or
local nondiscrimination law)?
Termination Checklist –
Continued
5. Has disclosed a disability or medical condition?
6. Has requested leave or recently returned from
leave under the FMLA, state disability leave law or
workers’ compensation?
7. Has requested an accommodation under the
ADA?
8. Is/was a member of the military?
9. Is pregnant?
Termination Checklist –
Continued
10. Has complained of discrimination, harassment,
unfair treatment or unsafe working conditions?
11. Has participated in an investigation or lawsuit
involving themselves or another employee?
12. Has been given favorable/positive employee
evaluations?
13. Was treated differently than other employees?
14. Will be surprised by the termination?
Any “YES” responses should be reviewed and assessed
before proceeding with a decision to terminate the
employee.
Thank You
Holland & Hart LLP
www.hollandhart.com