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Your best defense against failure-to-hire suits: Sound hiring process, complete documentation

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in Employment Law,FMLA Guidelines,Hiring,HR Management

It’s one of the HR profession’s hard truths: You never know which applicant may sue you if he or she isn’t hired. That means you must be ready to defend every hiring decision.

The best way is to have a clear routine that everyone involved in the hiring process must use.

Recent case: In 1999, Pamela Docken resigned from her job with the state of Minnesota after her request for FMLA leave was denied. She later sued and the case was settled.

But for years after the litigation was over, Docken kept applying for state jobs. She was never hired. She sued, alleging retaliation and interference with her FMLA rights.

The state showed the court how it handled applicants. First, it screened for minimum qualifications. Next, it reviewed applications for preferred qualifications. Only the most qualified applicants were interviewed and hired.

Each time Docken had been passed over, she failed to make the second cut—the one based on preferred qualifications. The court said she had no case. (Docken v. State of Minnesota, No. 08-4952, DC MN, 2011)

Final note: For good measure, make sure that whoever makes the initial decision on minimum qualifications doesn’t have access to irrelevant information that might influence the process. For example, the reviewer should not know an applicant’s age, sex, race or other protected characteristics. You may even want to remove names, as these can sometimes provide clues to ethnicity, origins or other protected characteristics.

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