Employment law:

Practical Pointers For

avoiding liability

Presented By:

Senior Assistant Attorney General Nga Mahfouz

Pre-Hire

Avoiding Pre-Employment

Claims • Federal laws against discrimination generally apply to applicants as well as

employees

• Applicants can file EEOC charges and lawsuits, even if they never work for the agency

– Over 1,400 EEOC charges filed in Arkansas in FY2016

– Responding to charges and suits can be time-consuming and costly

– Depositions, discovery responses, position statements, requests for information, FOIA responses, meeting with attorneys

• Implementing best practices lessens risk of liability and puts the agency in a better position when defending claims

Soliciting Applicants

• Communicate opening through posting – Avoid word-of-mouth solicitations

• Include essential functions • Avoid discouraging people from applying, e.g.: “recent college grads

preferred;” “perfect job for stay-at-home moms;” “seeking Girl Friday” • Posting should be accessible

– Provide accommodations for visual, hearing and mobility impairments – If posting is online, is your website accessible? – Is contact number accessible for hearing impaired? – Job fairs should be held at accessible facilities

• Articulate a specific and reasonable closing date and adhere to it • Allow accommodation for application process, even if agency cannot

provide accommodation to perform job. Example: – Hiring an interpreter for deaf applicant to participate in interview, even if

agency cannot hire full-time interpreter later

Applications

• Standardized form vs. resume?

– Forms may eliminate opportunity for TMI

• If forms are required, ensure that they are accessible to all applicants

• Clearly state the bases for disqualifications, e.g.:

– Falsifying information

– Omitting information, whether intentional or not

• Strict adherence to closing dates and whether to permit revisions

• Avoid seeking information which is not business-related

• Avoid inadvertent medical inquiries, e.g.:

– Do you have a disability?

– Are you currently taking any medications?

– Have you filed for workers’ comp?

Screening and Applicant

Selection Process • Choose qualified screeners

– He/she should be able to articulate reason for selection an applicant for interview, e.g., why was a more experienced applicant not interviewed?

– Should create contemporaneous documentation of basis for selection

• Consider how the documentation might be viewed by someone outside the agency

• Identify proper criteria for selection

– Too much subjectivity during this process may support allegations of bias or discrimination

– Avoid seeking information from external sources which may result in an unfair advantage/disadvantage to some applicants

Screening (cont’d)

– Avoid considering information which impinges on protected classes, e.g.:

• Seeking high school graduation date to determine age

• Asking about personal/social affiliations which may identify religious beliefs

• Avoid blanket exclusion of applicants with arrest or convictions

– Must be job-related and consistent with business necessity

– Green v. Missouri Pac. R. Co., 549 F.2d 1158 (8th Cir. 1975)

– May be taken into consideration as a factor, as long as employer takes into account: • the nature and gravity of the offense

• the time that has passed since the conviction and/or completion of sentence

• the nature of the job for which the applicant has applied

The Interview • Develop questions beforehand

• Use the same questions for all interviewees

• Avoid questions which will likely solicit protected information

• Always avoid:

– Politics, age, religion, family planning, health, lawsuits or claims filed, citizenship/nationality, use of sick leave, military leave

– Not OK to ask 3rd parties questions which you couldn’t ask the applicant

• However, it is permissible to ask whether applicant can:

– perform essential job functions with or without accommodations or meet attendance requirements

• Ask questions which are reasonably related to the vacant position

Interview (cont’d)

• Consider documenting responses, but not:

– Volunteered information regarding protected classes

– Personal or physical traits

– Personal opinions which may later be viewed as supporting a discrimination claim , .e.g.

• Too set in her ways

• Won’t fit in

• Job may be too physically demanding

• Documentation should include reason(s) the applicant was not qualified – not enough experience, not willing to work full-time, salary demand too high, etc.

• Document why the successful applicant was offered the job

Pre-Employment Testing • Medical exams can be conducted before employment, but only after a job

offer is made aka conditional offer of employment • Physical agility tests should not be designed to or result in excluding

classes of disabled applicants • Physical fitness test measures applicant’s performance of physical tasks

(running or lifting) and is not a medical exam – However, if an employer measures an applicant's physiological or

biological responses to performance, the test would be medical. Example: A messenger service tests applicants' ability to run one mile in 15 minutes. At the end of the run, the employer takes the applicants' blood pressure and heart rate. Measuring the applicant's physiological responses makes this a medical examination.

• Agency may ask an applicant to provide medical certification that he/she can safely perform a physical agility or physical fitness test

Making The Hiring Decision

• Check references before making the offer – Document responses and non-responses

• Any medical information obtained during the hiring process should be kept separately from the employee’s personnel files and should be disclosed on a limited, need-to-know basis only.

• Document the basis for making the offer, e.g., experience level, willingness to accept pay range, etc. – Do not include inappropriate references: “His age will inject

some into this agency”; “She’d fit in better with all of the women in the office”

• Offers of employment should include job title, salary, and a specific start date.

Post-Hire

Develop Policies

• Maintain policies in writing • Be realistic

– Is the policy manageable? – Will it be consistently enforced?

• Include clear statements of employment status – At-will – No contracts

• Have counsel review policies before adoption • Obtain proper approval or adoption of policies • Obtain acknowledgements of receipt/understanding of

policies • Review policies regularly for needed updates/amendments

Enforce Policies

• Distribute/communicate policies to all employees – Communicate all updates/amendments

• Preferably in training

– Obtain ackowledgments of receipt of policies – Document communication

• Be consistent in enforcement • Regularly reinforce policies

– Informal staff meetings – One-on-one counseling – E-mails

• Report issues with feasibility of enforcement to HR

Provide Regular Training

• For everyone: Policies, expectations, and protocol

• For supervisors and HR: harassment, discrimination, military leave, medical leave, accommodations, privacy, retaliation, wage and hour, documentation, evaluations

• For HR: Record-keeping • Document all training – maintain in personnel

files • Regularly review need for additional training

Document Everything

• Create contemporaneous records of all personnel actions – Complaints

– Investigations

– Disciplinary actions

– Counseling sessions

– Informal or casual conversations regarding performance

• Include e-mail exchanges

• Include witness statements where appropriate

• Maintain all documentation in central personnel file

Evaluations

• Be accurate, informative, relevant

• Be specific

• Be consistent and timely

• Refer to the job description to establish parameters

• Avoid the temptation to “sugarcoat”

• Set goals, i.e., personal improvement plans

• Provide legal protection: might later be used to show non-discriminatory reason for disciplinary action

• Provide basis for change in terms/conditions of employment

Reporting Inappropriate

Conduct

• Adopt policies which mandate reporting of policy violations – Specify procedure and identify points of contact

– Consequences for those who fail to follow

• Investigate & document all reports

• Maintain confidentiality to the extent possible – However, written reports may be subject to FOIA

• Non-retaliation reminders

• Follow through with investigation

Investigations

• Develop a course of action before beginning the investigation • Preferably performed by HR

– Unusual circumstances may warrant the need for an outside investigator

• Do not delay – Failure to promptly investigate may lead to claims of a hostile work

environment

• Listen and be objective • Get both sides of story

– Witness statements – Use discretion – Be fair; use your best judgment

• Encourage confidentiality • Prepare contemporaneous report • Present report to appropriate party for final decision on whether policies

were violated or action needs to be taken

Disciplinary Checklist

• Has issue been investigated • Has the issue been communicated to the employee? • Is there proper documentation of all communications?

– Contemporaneous records

• Is the recommended discipline consistent with similar infractions committed under similar circumstances?

• Is the recommended discipline related to employee’s protected activity?

• Has HR been consulted for input? – Report action taken to HR

• Has legal counsel been consulted? • Document/provide reason(s) for discipline

– Avoid the appearance of shifting explanations

Maintaining Personnel

Records • Personnel files should include, at a minimum, documentation

concerning application, interview, hiring, salary, insurance/other benefits, attendance, discipline/counseling, promotions, training, acknowledgements of policies/training, and separation

• Maintain current contact info, even for exiting employees – Former employees cannot provide witness statements if they cannot

be located

• Personnel records should be kept in a central location, preferably with HR

• Include e-mails as appropriate • Keep medical records confidential and in a separate file and

location • Maintain records for at least 3 years (including e-mails sent to/from

employees)

Maintain Professional

Discretion

• With employees

– Medical information

– Investigation details

– Complaints lodged

– Evaluations

• With employers/other entities

– Job recommendations

– Salary confirmation

Record-Keeping for Hours

Worked • Require and maintain accurate records of all hours

worked – Mandatory training – Stand-by time – Break-time work – Time-sheet “predictions”

• Consistently enforce policies regarding overtime/comp time

• Communicate prohibitions against “off-the-clock” work – Early/late workers, working through lunch

• Maintain records of hours worked (including relevant e-mails) for 3 years

EEOC Charges

Responding to Charges

• Is the employer properly identified?

• Did the alleged actions occur within 180 days of the charge date?

• Are dates/job descriptions/names of supervisors accurate?

• What is the employee complaining about?

• Highlight/number/underline each allegation

Preparing the Position

Statement • Step 1: Describe the factual background

• Provide employment history • Length of employment • Progression through job titles • Identity of supervisors • Job duties • Workplace environment • Disciplinary history

• Identify and quote policies or applicable regulations

• Step 2: Identify the Claims and Lay Out the Law • E.g., In order to succeed on retaliation claim, the employee must show . .

• Step 3: Apply facts to law

• Emphasize consistency • Draw favorable comparisons

• E.g., Other employees in similar situations • Explain why favorably treated employees are not similarly-situated

Position Statement (cont’d)

• Attach exhibits

• Avoid affidavits

• Avoid disclosure of sensitive/confidential information pertaining to other employees

• Use documentation to verify facts

• Define acronyms or industry-specific words/phrases

• Tell your side of the story

800.482.8982

oag@ArkansasAG.gov

AGLeslieRutledge

AGRutledge

AGLeslieRutledge

ArkansasAG

AGRutledge

Attorney General Leslie Rutledge