Both written words and oral promises must be chosen carefully to avoid creating either actual or implied employment contracts during the hiring process. Employee lawsuits can erupt when managers make promises in an interview that can't be kept, create job offer letters that leave no room for flexibility, or inadvertently oversell the potential for monetary rewards creating an implied employment contract.
Hiring
When hiring employees, negligent hiring practices can doom the process. Learn from your colleagues’ successes – and avoid their pitfalls.
Smart interview questions, well-written job descriptions, and sharp interviewing result in hiring employees that work out well, AND make you look good in the process.
Interview questions must not only produce useful information for making informed hiring decisions, but also stay on the right side of employment laws. Anti-discrimination acts make it imperative that interviews focus on applicants' abilities, not their personal characteristics, whether they involve disability, pregnancy, age, sex or religion.
Q. Our company doesn’t want to consider applicants who send in unsolicited résumés. We are trying to come up with a legally sound definition for “applicant” so we can write an official policy. Any suggestions?
Q. We have heard that employers are increasingly screening applicants online, including by going to their Facebook pages. Can we require an applicant who has a private Facebook page to give us the password to that page?
Some jobs demand relevant, real-world work experience. If a failed applicant sues, claiming a college degree should have trumped on-the-job experience, you’ll probably win—if you can justify your experience requirements.
Remind managers who take job applications that they can’t automatically turn away applicants with disabilities. That can cause a lawsuit that could result in huge punitive damages.
Before you plunge into cyberspace in search of information on applicants (or current employees), understand the legal implications. Employers’ efforts to access employees’ and applicants’ private social media websites have recently been subject to increased scrutiny by New York and federal legislators.
There is no constitutional right to a free attorney in employment discrimination cases. Unless a so-called pro se litigant can show the court that his claim clearly has merit, he’ll have to serve as his own lawyer.
Sometimes, employers settle an employee lawsuit and expect that to be the end of the matter. But unless the settlement includes an agreement not to apply for any new job openings, the former employee may do just that. And if he’s not hired, he may allege retaliation for prior litigation.
If you don’t regularly post your job openings and promotion opportunities, you are asking for trouble. Here’s why: Applicants and employees can sue if they believe they missed out on an opportunity—even if they never applied. That litigation blindside may force you to justify your hiring and promotion decisions long after you made them. And if you didn’t keep careful records, you may be in trouble.
