Even if you’re sure there’s no hope of accommodation, you have to have the interactive discussion, he says. And once the refusal is made, and the employee complains, it’s too late to go back.

Schickman, a partner at Freeland Cooper && Foreman LLP in San Francisco, joined other attorney experts from the Employers Counsel Network to deliver hard-hitting answers to HRDA’s question about the most expensive mistake HR managers make.

The remarks came at BLR’s Advanced Employment Issues Symposium, held November 17-18 in Las Vegas.

H1B Public Access File

For immigration expert Hector Chichoni, partner at Duane Morris LLP in Miami, the most common problem is failure to maintain the public access files for H1B determinations. The requirements for the file are extensive and the file has to be available for inspection by the public with a day of its submittal. Many employers don’t have this file at all, Chichoni says.

Step … away … from the keyboard! Your job descriptions are already written. Click here to see why thousands of managers have a permanent place in their offices for BLR’s classic Job Descriptions Encyclopedia.

Limiting Those Who Need to Know

The most common mistake Dinita James sees is failure to limit the number of people in the know about employees who make complaints, request leave, or take other protected actions. The most basic defense to a charge of retaliation is that the decision maker did not know about the activity. That’s the end of the retaliation claim.

When everyone knows about the protected activity, then any negative action taken by anyone will be interpreted as retaliation.

Documentation Failures

“The mistake I often see is failure to document or failure to document well,” says Molly DiBianca, who is with Young, Conaway, Stargatt && Taylor LLP in Wilmington, Delaware. “Your defense falls apart if you don’t have documentation to back it up. But managers just don’t do it. You have to train them and keep after them.”

Casual Online Reference Checking

Another mistake that DiBianca sees is casual background checks on social media. If you are going to do them, consider the following to reduce liability, she says:

1. Decide beforehand what you will be looking for (e.g., illegal activity), make a list, and clear the list with your attorney. Keep the list to five items.
2. Limit your search to final candidates.
3. Make sure the searcher and decision maker are different people (as James said, the best defense is that the hiring manager didn’t know about whatever impermissible information was uncovered).
4. Document your search, what you searched for, and where you searched.
5. Let the candidate know that you are doing the search.
6. Share the results with the candidate if you are making a negative determination based on it, and especially if you have reason to doubt the validity of the information.
7. Control hiring managers. One casual survey found that only 10 percent of HR departments were doing social media background checks but 100% of hiring managers were doing them!

And one more big mistake—out of date job descriptions. How are your job descriptions? Well-written, up-to-date, and ADA-compliant? Detailed enough? Essential skills delineated?

If not—or if you’ve never even written job descriptions—you’re not alone. Thousands of companies fall short in this area.

It’s easy to understand why. Job descriptions are not simple to do—what with updating and management and legal review, especially given the ADA requirement of a split-off of essential functions from other functions in the description. Wouldn’t it be great if your job descriptions were available and already written?

Actually, they are. We have more than 700, ready to go, covering every common position in any organization, from receptionist right up to president. They are in an extremely popular BLR program called the Job Descriptions Encyclopedia.

First created in the 1980s, the “JDE” has been continually refined and updated over time, with descriptions revised or added each time the law, technology—or the way we do business—changes.

Prewritten job descriptions in the Job Descriptions Encyclopedia now come with pay grades already attached. Click here to try the program at no cost.

Revised for the ADA, Pay Grades Updated

There was a major revision, for example, following the passage of the ADA. In fact, BLR editors reviewed every one of those 700 descriptions to ensure they were ADA-compliant.

Another enhancement was the updating of pay grades for each job. According to our customers, this is an enormous time-saver, enabling them to make compensation decisions even as they define the position. You can see a sample job description from the program by clicking here. (Yes, it is the one for HR Manager—Pay grade: 37.)

The BLR Job Descriptions Encyclopedia also includes an extensive tutorial on setting up a complete job descriptions program, and how to encourage participation from all parts of the organization. That includes top management, the employees, and any union or other collective bargaining entity.

Quarterly Updates, No Additional Cost

Very important these days, quarterly updates are included in the program as a standard feature—key at a time of constantly changing laws and emerging technologies. We’ll send you new or revised descriptions every 90 days. And the cost is extremely reasonable, averaging less than 43 cents per job description … already written, legally reviewed, and ready to adapt or use as is.

You can evaluate BLR’s Job Descriptions Encyclopedia at no cost in your office for up to 30 days. Get more information or order the Job Descriptions Encyclopedia.

Download product sample
Download list of job descriptions included

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