There are, of course, other refinements and industry-specific recommendations we might make, but these 10 commandments, if religiously followed, should reduce the number of lawsuits filed against your company and assist you greatly when a lawsuit is filed.
1. Advertisements should set the stage for equal employment opportunity.
Your job advertisements should avoid all reference to race, color, religion, sex, national origin, age, or disability unless it''s based on a bona fide occupational qualification or required by the government for security reasons. Avoid subtle references in your advertisements, such as requesting "college students" or "recent college graduates." Those references might be seen as discriminating against older persons. Your ads should always state that you''re an equal opportunity employer.
Also, where you advertise is important. Remember to advertise in a newspaper directed to the whole community, not just certain segments. For example, limiting your hiring to "word of mouth" advertising tends to create an applicant pool solely reflective of current employees. Casting your advertising net widely is more likely to attract a diverse applicant pool.
2. Take your employment application from the wings and place it at center stage.
Make sure your employment applications preserve the right to discharge employees "at will." Eliminate questions on your application forms that could be seen as devices to screen out certain protected groups. Don''t ask about sex, race, height, or weight. Don''t ask applicants to submit a photograph or physical description.
Make sure your applications include a certification by the applicant that all information is true and correct as well as a warning that falsifying an application is grounds for disqualification or discharge. Obtain authorization from the applicant to contact prior employers and obtain references. Make sure the applicant releases all persons from liability relating to such disclosures. If you intend to do criminal background checks, get permission to do so and include all necessary disclosures.
Include a place on the application where the applicant affirmatively recognizes that her employment can be terminated at will, at any time, without or without cause, at either the employee''s option or the option of the employer.
3. Preemployment inquiries should be rehearsed.
Make sure all interviewers and supervisors are trained regarding the do''s and don''ts of interviewing. Make sure interviewers know the subjects to avoid, such as sex, marital status, child rearing, childbearing, race, medical inquiries, criminal convictions and arrests, citizenship or birthplace, union affiliation, religion, and politics.
Be aware that contrary statements made during an interview could modify or eliminate the protections written into your job applications. For example, if an interviewer states that the job would last through the duration of a certain project, that might be enough to create an implied contract of employment for a fixed term, notwithstanding the "at will" language in the job application.
4. Communications concerning terms and conditions of employment must be clear and concise.
Employers must avoid expressing salary in annual terms because of the inference that the employee is entitled to one year of guaranteed employment.
If your employment agreement contains a covenant not to compete, the covenant must be carefully drawn to protect only the legitimate interests of the employer. Each covenant not to compete is unique, but it must be reasonably based on the geographical extent of the company''s business, the duration of the limitation, the nature of the employee''s duties, and the nature of the interest the employer seeks to protect. Covenants that are primarily designed to limit competition or restrain the right to engage in a common calling aren''t enforceable.
Use employee handbooks! They''re the best way to communicate your company''s policies, procedures, and expectations to all employees. Make sure your handbook has a prominent disclaimer, preferably in bold type, that the handbook isn''t a contract. Set forth your company''s work rules, and avoid stating that an employee can be terminated only for just cause. Make sure the list of work rules isn''t all- inclusive. Don''t use terms such as "probationary period" because they may create some expectation of job security or tenure.
Have your legal counsel review your handbook on a regular basis, and update your policies and procedures as changes in law and regulation occur. Make sure you reserve the right to alter the handbook at any time in the company''s sole discretion. Use your handbook to outline the company''s expectations of all employees, and make sure you have a mechanism to document each employee''s receipt of the handbook and all updates to it.
5. Performance evaluations need to be real. Inaccurate or mismanaged performance appraisals are one of the most common causes of unjust dismissals and discrimination lawsuits. "Grade inflation" is a common failure of many performance evaluation processes. When times are good, supervisors don''t want to "rock the boat," and they have a tendency to overlook marginal performers. Those actions, however, inevitably come back to haunt the company, especially when reductions in force are necessary.
We can''t tell you how many times clients have been sued by former employees who were laid off under a reduction in force when the company''s own documentation simply didn''t support its explanation that the employee was clearly the worst performer of the group. Make your evaluation systems as objective as possible, and make sure your supervisors address performance concerns honestly, accurately, and proactively. Review each performance appraisal with the affected employee, and have the employee sign the evaluation form, attesting that she has read it.
Last, evaluate your evaluators, and determine whether they''re complying with your performance appraisal processes and are stepping up to the plate and making the tough decisions when necessary.
Stay tuned! Take this week to absorb these first five "commandments" and next week, we''ll share the last five, including correcting poor performance, investigating employee misconduct, well-orchestrated discharges, and more.
- HR Special Report:
A Legal Guide to Successful Hiring
www.hrhero.com/special
Copyright 2003 M. Lee Smith Publishers LLC. This article contributed by *Utah Employment Law Letter*. Read more about the print newsletter and its editors at www.Hrhero.com/utemp
This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Remember to check your state''s laws for more restrictive rules and regulations. For more information on state-specific employment updates written by attorneys in your state, go to:www.Hrhero.com/empnl