HR managers can often save their companies thousands of dollars in litigation fees by spending just 5 minutes consulting with their attorneys, say Tracy L. Cahill and Veronica T. von Grabow. Sounds like a bargain.

Cahill and von Grabow are attorneys in the Los Angeles offices of the law firm Mitchell, Silberberg & Knupp LLP. Their remarks came at the Preconference Workshop of BLR's National Employment Law Update held recently in Las Vegas.

The two attorneys provided several examples of situations in which a quick call to an experienced attorney might save an employer from expensive litigation—or, at the least, mitigate the damages.

Rescinding the Job Offer?

The scenario: The company makes a conditional job offer to an applicant contingent on the results of his background check and medical examination. First, the applicant's medical exam shows that he has a terminal disease. The next day, his background check shows that he filed for bankruptcy 10 years ago and he has been arrested multiple times for armed robbery. The manager wants to rescind the job offer.

Not so fast, Cahill and von Grabow said. Attendees agreed, noting the many concerns your attorney would raise, including:

The Americans with Disabilities Act (ADA). The ADA may be implicated. It would be important to consider whether the terminal illness was relevant to the individual's job performance.

The Fair Credit Reporting Act (FCRA). FCRA limits employers' use of background check information and requires disclosure to the applicant if adverse information from a background check is used as a basis to refuse employment. Considering the arrests and past bankruptcy may violate that law.

Discrimination laws. Refusing to hire someone because of past arrests, not convictions, may violate discrimination laws.

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Cahill and von Grabow’s Tips:

  • Before starting the hiring process, identify the decision maker and what he or she needs to know about the applicant.
  • Always do the medical exam last, after reference and background checks.
  • Make sure your outside medical vendor informs you only whether the applicant can do the job, not of specific medical conditions.
  • Likewise, make sure your background check vendor provides you with only the information you may legally consider in making hiring decisions.

Ready to Terminate?

The scenario: An employee circulates a letter of protest she's written after a co-worker, with whom she's had many conflicts, is promoted. In the letter, the employee states that the co-worker is “unreasonable” and “difficult to work with.” As a result, the co-worker's ability to do the new job is undermined and employee morale has suffered.

The complaining employee's manager wants to immediately fire her for this unprofessional conduct. Here, Cahill and von Grabow suggested, your attorney might recommend:

  • Investigate the nature of the conflict between these two employees. There could be factors that would suggest that termination might not be the best course.
  • Review discipline policies and past practices regarding termination for a first offense. It is important that the company apply discipline fairly and consistently to avoid discrimination claims.
  • Consider whether the employee's conduct was protected by the National Labor Relations Act (NLRA). Cahill and von Grabow pointed out that in a factually similar case, a court ruled that the employee was wrongfully terminated for engaging in protected concerted activity. They observed that it is easy to forget about the NLRA, especially if your company is not unionized. Yet, that law applies even in nonunionized settings.

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Cahill and von Grabow Tip:

If managers are reluctant to take the most prudent course of action, you can achieve more by involving your attorney. He or she can help educate managers about the legal risks. And, unlike HR, attorneys can be blunt—they do not have to worry about maintaining a working relationship with the managers.

In tomorrow's Advisor, we'll feature one more scenario and a discipline checklist, plus we'll get an introduction to a unique 10-minute training tool.

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