Hiring Employees and Avoiding Legal Problems - Seven Mistakes Employers Should Avoid And Potential Employees Should Watch For During Hiring
Author: The Law Offices of Galen Gentry, P.C.
Category: Legal
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MISTAKE NO. 1 Failing to ensure the employee knows that he or she is employed at will.
As an employer be careful what you communicate orally or in writing when you make a job offer. The statements you make about the nature of the position or the long term opportunities with the company may be construed as a promise that the job is secure for a certain period, or that you would not fire the employee with out good cause. To protect yourself you can write an employment letter that states the title of the position, the date the job begins, the starting salary, reiterates the at will status of the employee, and explains and limits how the at will relationship can be altered in the future. The status should only be alterable by obtaining the signed consent of an important company official, like the president.
As a potential employee, if the employer has promised you the job will be for a certain period or that you will not be terminated except for good cause, make sure that you do not sign any documents which negate such promises. For example, applications for employment often state that employment is at will.
MISTAKE NO. 2 Defining at will employment in your offer letter or employee handbook.
Employers be careful. If you try to define at will employment you may give the employee, his or her attorney, the labor commission, a judge or jury the chance to second guess you. Generally, at will employees can be legally terminated without cause if the employer has no illegal motivation for the termination. While the employee may perceive this as unfair, it is not actionable.
Employees if you offer letter or employee handbook defines at will employment and you are later terminated make sure you bring this to the attention of your attorney in the event you seek legal recourse against your employer for wrongful termination.
MISTAKE NO. 3 Engaging in discriminatory hiring practices.
Do not do it. State and Federal laws prohibit all but the smallest firms from discriminating based upon race, color, gender, religious beliefs, national origin, disability, or age. The antidiscrimination laws apply to all stages of the employment process: preparing job descriptions, writing ads, settling salaries, deciding whom to hire, promotion and discipline. The laws apply only to employers who have more than a certain number of employees; the number differs for each antidiscrimination law.
MISTAKE NO. 4 Asking unlawful questions in the interview.
The U.S. Equal Employment Opportunity Commission sets out examples of questions employers may not ask on its website. Here is a partial list of general inquiries a potential employer cannot ask an applicant: birthplace, age (other than asking if the applicant is over 18), race, height, weight, gender, and are you married? The Americans with Disabilities Act prohibits pre-employment questions about a disability. You may ask about the ability of the applicant to perform specific job functions. You may not enquire into the nature or severity of a disability, ask about medical treatment, or require an exam. After you make a conditional offer and before an applicant starts work, you are free to gather more details. You can require a medical exam or ask health related questions as long as you require this for all candidates who receive conditional offers in the job category.
MISTAKE NO. 5 Breaching the privacy rights of an individual.
Some individuals give incomplete information when they apply for a position. It is makes good business sense to do some background investigation. If a person lacks the requisite experience or a criminal record, you may have a problem. Seek only the information you need. Inform the applicant in writing if you will request information from schools, credit reporting agencies, former employers, etc.
Employees incomplete or inaccurate information can cost you a job offer. Make sure your application or resume contains up to date information.
MISTAKE NO. 6 Violating the Fair Credit Reporting Act.
A federal law imposes rules regarding obtaining and using consumer reports, credit reports, and background checks. The rules relate to any report prepared by a consumer reporting agency like TransUnion and Equifax a report prepared by a private detective would also be covered. Employers must notify a person in writing before you obtain the report. Employers need the person's written permission to obtain it.
If an employer obtains a report and intends not to hire an applicant due to the information it contains, the employer must first give the person a copy of the report and a copy of A Summary of Your Rights Under the Fair Credit Reporting Act which is available from Federal Trade Commission website, or from the entity that prepared the report. After an employer has taken the adverse action the employer must notify the person. Do it in writing. The notification must give the name, address and telephone number of the company that prepared the report. State the company that prepared the report did not make the decision to take the adverse action. State the person has the right to dispute the accuracy or completeness of the information furnished. State the person may obtain an additional free report from the credit agency upon request within 60 days.
MISTAKE NO. 7 Failing to fill out the paper work.
Form I-9, IRS Form W-4, New Hire Report to the State--every employer must fill out the forms. Retain copies and comply with the relevant regulations. If you are a new company, before you hire any employees you must have an Employer Identification Number. To obtain one file form SS-4. An employer must also register with the California EDD after paying over $100 in total wages to one or more employees in a calendar quarter. Registration forms can be ordered on the EDD website or downloaded.
Immigration laws prohibit employers from hiring aliens who lack authorization to work in the United States. You and the employee must complete the Form I-9 Employment Eligibility Verification. This one page form is retained by the employer, and can be used to show that the employer complied with the law and took the steps required to determine the employee was eligible to work legally in the United States.
For Employers Avoiding Hiring Errors Is Ethical and Productive People are not machines.
Every person has preconceptions and biases; however, state and federal laws provide broad protection for employees at all stages of the employment relationship. Employer compliance with the relevant laws pays obvious dividends in greater employee job satisfaction and decreased legal problems. Employees and applicants have a broad range of legal rights and remedies in the event of violations.
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Keywords: legal problems hiring employees, employee's legal rights, hiring law, credit check before hiring, avoiding problem employees
View Count: 224
Date Submitted: 11/11/2008
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