In yesterday’s Advisor, we shared some of attorney Stephen R. Woods’ rules for avoiding hiring lawsuits. Today we bring you more tips, and an introduction to a new audio conference about the mundane—but critical—challenge of HR recordkeeping.
Woods, a shareholder at the Greenville, South Carolina office of law firm Ogletree Deakins, delivered his remarks at the recent BLR Employment Law Update conference. (See yesterday’s Advisor for Rules 1 and 2.)
Rule 3: Use Your Application Form to Help Create a Defense Against Potential Claims
An employer’s first and best, but often overlooked, opportunity to avoid lawsuits related to hiring is the employment application itself, says Woods. Employers should have a well-written application form and make sure that every applicant considered for a job completes the form (even the CEO and other managers), said Woods.
The application form should include the following:
–An Equal Employment Opportunity (EEO) statement
–A statement signed by the applicant that all information provided on the application is complete and accurate, and that false, misleading, or incomplete information could lead to a decision not to hire or be grounds for termination if an applicant has already been hired
–An at-will employment statement
–An authorization for pre-employment testing
–An authorization for background investigation and reference check
Woods also suggests employers consider adding a statement saying the application will remain active and valid for a specific period of time, such as 60 days or until the position is filled. This prevents applicants from coming back a year later and claiming they should be considered for a current job opening. However, Woods cautioned, if the company adopts this policy, it must make sure it is consistent in its implementation.
Rule 4. Use Job Interviews to Get All (the Rest of) the Information You Need to Make a Decision
Once the applicant has completed the application form, the next step is the interview. The interviewer should review the application form for completeness and for red flags such as gaps in employment, job hopping, reasons for leaving, names of supervisors, etc. Delve into those areas in the interview.
Waiting until you get to court to see if your records stand up? Here’s an easier way to find out: BLR’s January 20 audio conference, HR Recordkeeping: What to Keep, What to Toss, and How to Make Sure Your Records Protect You. Your satisfaction is assured. Can’t attend? Preorder the CD. Get more information.
Rule 5. Check It Out
Woods admonished employers to not accept application and interview information at face value. Check it out, he says. Woods recommended both checking an applicant’s references and conducting a thorough background investigation. Remember, if you hire a third party for this service, you must comply with the federal Fair Credit Reporting Act (FCRA), he notes.
Bonus: Rule 6. Document, Document, Document
We’re going to add a bonus rule. It seems like an easy one—document what you do in Rules 1 to 5. But in real life it’s not all that simple. Exactly how much do you document? What should you keep? And where? And how long? Just as important, what shouldn’t you keep? What might end up as a smoking gun in your next lawsuit?
Recordkeeping is critical, and developing guidelines can be tricky. Need advice or answers to your particular recordkeeping problems? Our editors recommend BLR’s January 20 audio conference, HR Recordkeeping: What to Keep, What to Toss, and How to Make Sure Your Records Protect You.
Is Recordkeeping the Dullest Aspect of HR?
Recordkeeping may seem dull today, but not when the lawsuits are filed. Suddenly recordkeeping is on the front burner—and there’s no going back to fix things. Either the records are clear and complete, or they’re not.
If records are missing or incomplete or inaccurate, who’s going to take the heat? HR, for sure. And to make things worse, recordkeeping’s changing for 2009—like new FMLA rules, for example.
Recordkeeping is a critical function of human resources—the right documentation can make or break your defense against employee lawsuits—not to mention fines and penalties from government agencies. But are you sure that your records would protect you in court?
Recordkeeping on the back burner? You’re going to pay the price eventually. Find out how to do it right at BLR’s January 20 audio conference, HR Recordkeeping: What to Keep, What to Toss, and How to Make Sure Your Records Protect You. Can’t attend? Preorder the CD. Find out more.
Try BLR’s new audio conference: HR Recordkeeping: What to Keep, What to Toss, and How to Make Sure Your Records Protect You. The date is Tuesday, January 20, 2009. The time: 1:30 p.m. to 3 p.m. (Eastern Time—adjust for your time zone).
As with all BLR audio conferences, one fee trains all the staff you can fit around a conference phone, and you can get your (and their) specific phoned-in or e-mailed questions answered in an extensive Q&A that follows the presentation. Your satisfaction is assured or you get a full refund. What if you can’t attend on that date? Preorder the conference CD.
We have been including a background check authorization form with our applications. However, I’m concerned that it opens us up to age discrimination suits since the form requests the applicant’s DOB.
Regarding the age question on background checks, one of our legal editors offered this information:
As a general rule, the employment application shouldn’t include questions that solicit the applicant’s age, gender, religion, race, national origin, disability, etc. Form used to collect EEO information should be separated from the application and kept in a confidential form. Background check authorizations often request age, date of birth, place of birth, social security number, and other information that shouldn’t be part of the hiring decision and must be kept confidential. In most states, background checks should only be conducted after a conditional offer of employment is made. In addition, under the Fair Credit Reporting Act (FCRA), if the employer uses a third party to conduct all or part of the background check, there must be a separate authorization compliance with FCRA that only contains the background check disclosure and authorization.