HR Recordkeeping Simplified

How
important is it to keep accurate employment records? Not very, some might say,
but they’d change their tune as soon as the lawsuits started to fly.

Poor or missing records make it hard to defend lawsuits, says attorney Allen
Kato. But if you have good records supporting your actions, opposing attorneys
will be less likely to take the case. And even if they do, your records can
defeat—or at least blunt—their efforts.

Kato is an associate at Fenwick and West in San Francisco who recently spoke at an audio
conference hosted by ERI’s parent company, Business & Legal Resources. He
was joined by fellow attorney Trey Wichmann.

Hiring Records

Responsible recordkeeping begins early in the hiring process, says Wichmann.
He offers the following tips:

• Job descriptions. Be
  sure that your job descriptions identify the essential functions of the
  job, as required by the Americans with Disabilities Act (ADA) and the

  California Fair Employment and Housing Act (FEHA), and that they describe
  the minimum qualifications applicants need.

• Job postings and ads.
  Avoid any limitation or exclusion on any protected basis.

• Job applications should
  include the following:
  
  • Employment-at-will
    language
  • Statement of truth
  • Authorization to check
    references
  • Arbitration agreement,
    if desired

• Interview notes.
  Document valid reasons for selecting and rejecting each applicant. Be sure
  that your notes are legible.

• Offer letters. Establish
  the terms and conditions of employment and confirm the at-will status of
  the relationship.

Required postings are an important part of your compliance
efforts. Are you sure your posters
are in compliance? ERI’s poster kit satisfies your state and federal posting
requirements in one easy step. Click here to order.

• Reference and background
  checks. In general, says Wichmann, there are no legal hoops for
  employers doing their own reference checks with past employers. However,
  when doing criminal background checks through third parties, you fall
  under the Fair Credit Reporting Act. FCRA has a series of disclosures,
  consents, and notices—all with tight deadlines—that must be carefully
  tracked and maintained, especially if you take adverse action based on the
  report you obtain.

• I-9 verification.
  Make a copy of the documents offered, although this is not required.

• Drug and alcohol tests.
  The ADA
  and state disability and privacy laws require careful records be kept of
  the testing.

• Agreements. At hire,
  obtain signed statements concerning, as needed: invention assignment,
  proprietary information, noncompete, and employee handbook receipt.

 

In
tomorrow’s CED, we’ll explain what
the employee file should contain, and explain a resource that can help you
simplify an important aspect of your compliance requirements.