The Dos and Don'ts of
Hiring and Firing
Lea C. Dearing and Devon D. Sharp
April 16, 2013
WHY ARE WE HERE TODAY?
The average cost to defend an employment-related
claim is about $75,000
State and federal employment laws affect virtually
every aspect of your day-to-day business
Hiring and firing are some of the most high-risk areas
Our goal today: To provide you with tools to avoid, or
at least minimize, the costs of these claims
THE HIRING PROCESS
VALUE OF THE INTERVIEW PROCESS
An integral part of every employer's talent acquisition
process
If done well, can positively impact costs and employee
morale
Standardization ensures maximum efficiency and best
results
RISK AREAS FOR INTERVIEWING
Age
Citizenship / National Origin
Marital Status
Pregnancy
Disabilities
Health Concerns
Religious Affiliations
Race
PREPARING FOR AN INTERVIEW
Identify and write down the attributes of your ideal
candidate, and tailor questions around those attributes.
Prepare a list of essential job functions and ensure you
explore competency/experience in all of those areas.
Try to ask only open ended questions . . . You'll be
surprised by how much you learn from an
applicant's response!
IMPROPER INTERVIEW QUESTIONS
Where were you born?
What is your native language?
Are you married?
Do you have children?
Do you plan to get pregnant?
How old are you?
How was your Christmas?
Do you have a disability or chronic illness?
Do you smoke, use alcohol, or use drugs?
Are you in the National Guard?
IMPROPER INTERVIEW QUESTIONS
PROPER INTERVIEW QUESTIONS
If you stayed with your current company, what would be
your next move?
What makes you stand out from others?
What is your greatest accomplishment?
What is your greatest weakness?
What are your future goals?
How do you deal with conflict?
PROPER INTERVIEW QUESTIONS
Can you fulfill ___________ physical task?
What circumstances bring you here today?
What type of work environment do you prefer?
What tools or habits do you use to keep organized?
Are there any days or times you are not available?
In what ways do you raise the bar for yourself and
others around you?
What unique experience or qualifications separate you
from other candidates?
AT-WILL EMPLOYMENT
At-Will Employment Doctrine
Both the employer and the employee may terminate
the employment relationship at any time, for any
reason or no reason, with or without cause or notice.
This is the presumption in virtually all states
(including Texas)…
BUT, you as the employer must be careful not to
inadvertently alter that presumption!
AT-WILL EMPLOYMENT
Places to include an at-will employment disclaimer:
Job application form
Offer letter
Employee handbook
Avoid:
Using words like "promise" or "guarantee"
Comments like, "This is a secure position," or "Work hard
and you'll always have a job here"
Any statements relating to duration of employment
NEW HIRE PAPERWORK
New hire paperwork should be filled out on the date the new
employee is hired, and not any earlier or later.
In the case of certain documents (i.e., Form I-9), strict compliance
with the rules is more than just a best practice – it's mandatory to
avoid government fines!
I-9 should be completed on the date of hire, but no later than 3
business days thereafter
New employee must be physically present when form is being
completed
Must see original documents, not copies
No exception for temporary or part-time employees
OTHER POTENTIAL PITFALLS IN HIRING
Job postings/advertisements
Avoid listing job qualifications that categorically disqualify
groups of people
Discussing other applicants
Avoid discussing credentials and backgrounds of other
applicants being considered during the interview process
Applicant rejection
Limit explanations to generalized statements. Stay away from
sensitive terms such as "overqualified" or other terms that could
be misconstrued to reference or implicate protected categories
OTHER POTENTIAL PITFALLS IN HIRING
Offers of employment
Put everything in a formal, written offer letter
No informal promises through e-mail or verbally
Inconsistency
Best to centralize hiring (and firing) functions
Ensure that all employees responsible for hiring/firing are
properly trained
Confidential information from prior employer
Watch out for this – can expose you to serious liability
Require acknowledgement that new employee hasn't brought
any confidential information with him/her
TERMINATING EMPLOYMENT
Things you're trying to avoid:
Discrimination
Retaliation
Defamation
Intentional infliction of emotional distress
To avoid these things, you must think ahead and make
smart decisions leading up to termination….
DOCUMENT, DOCUMENT!
Three reasons for documenting discipline
1) May cause an unsatisfactory employee to improve
and thus avoid termination
2) Establishes a record of fairness
3) If termination becomes necessary, it will be
evidence that the reason was real and not a
pretext
RESULT Decreased chance of litigation &
attorneys' fees, increased profit & morale
DOCUMENT, DOCUMENT!
In a perfect world, documentation should contain:
Notice of employee's shortcomings and realistic time
period to correct them (cite to handbook if applicable)
Intermediate disciplinary steps such as transfer,
suspension, or probation
A specific warning of the disciplinary action to be
taken, "up to and including termination," if employee
fails to improve
Place for employee to sign, acknowledging receipt
and review
DOCUMENT, DOCUMENT!
At a minimum, you should do the following:
Write a brief statement of the event/problem
Abbreviations/shorthand are ok
E-mail it to yourself, another manager, or send a quick
note to the employee's personnel file
Raise the issue with the employee, and document that
you did so
Make sure it's timely (don't send weeks later)
It becomes a timeline showing how often you have to deal
with the issue/problem
DOCUMENT, DOCUMENT!
Example of quick/easy documentation:
"J. Smith tardy this morning. Shift began at 9:00;
arrived at 9:30. Third tardiness this month. I addressed
with J. Smith this afternoon; he acknowledged it was a
violation of company policy and promised to improve."
DOCUMENT, DOCUMENT!
BUT……Think before you write!!
Written communications about a problem employee can
be subject to discovery in a future lawsuit
Bringing lawyers into the conversation, where
appropriate, may help
At a minimum, make sure written communications are
objective and not sarcastic
Don't editorialize, explain or conclude – just
DOCUMENT!
PRE-TERMINATION
BEFORE terminating an employee, make sure you're well-prepared.
Contact your HR Dept. (every time!) and communicate to your
subordinates that a branch/regional manager should always be involved
Review personnel file
Check past practices and company policy
o Was the relevant policy communicated to employee?
o Be consistent!
Warning signs:
o No documentation
o Good work record
o In a protected class
Call employment counsel if you're unsure!
THE TERMINATION MEETING
THE TERMINATION MEETING
In the termination meeting:
Have another manager/supervisor present, so it
doesn't become a "he said/she said" situation
State reasons clearly
Be truthful, direct and decisive
Avoid arguing
Don't apologize
Be courteous
POST-TERMINATION
Post-termination procedures and practices
Document, in detail, the reasons for termination
Complete necessary post-termination paperwork (e.g.,
COBRA)
Obtain a release, if severance pay is given
Future references
If employee is leaving on bad terms or has a history of
poor performance, avoid a defamation claim by limiting
commentary to dates of employment, job title, and salary
OTHER POTENTIAL PITFALLS IN FIRING
Relying solely on a supervisor's assessment or
recommendation
Conduct your own, independent investigation in the
event of alleged employee misconduct
Inconsistency
Always apply rules/policies in a consistent manner
Don't play favorites
OTHER POTENTIAL PITFALLS IN FIRING
Terminating based on social media posts
Recent decisions by the National Labor Relations
Board have made this much more risky
Consult with employment counsel before doing this
Firing before doing homework/consulting with HR
Call your HR manager EVERY TIME you're
considering firing someone!
WHAT NOT TO SAY IN
A TERMINATION MEETING…
IF A FORMER EMPLOYEE FILES A CLAIM…
If you do get served with an EEOC charge or a
lawsuit by a former employee, take these three
steps immediately:
1) Notify your insurance carrier
2) Get counsel involved
3) Preserve evidence
