How Can I Avoid Suits Related to Hiring Practices?

West, principal of Employment Practices Specialists in Pacifica, CA, offered her tips at SHRM’s Employment Law and Legislative Conference, held recently in Washington, DC. Here are West’s tips for avoiding hiring lawsuits:

• Use application forms
• Ask about felony convictions
• READ the completed application
• Look for and ask about gaps in employment, missing information
• Check references
• Often difficult
• Attempt to contact co­workers or subordinates
• Authenticate credentials
• Train your interviewers about policies, background checks
• Consider criminal background checks:
• Perform additional checks appropriate to the position being sought, e.g., positions dealing with children or the public
• Comply with FCRA!
• Remember that some states prohibit employers from using information from the Megan’s Law database
• Document all steps taken even if you were unsuccessful in obtaining information
• Make only factual representations that can be proved. (Note, says West, in some states: misdemeanor to fraudulently induce a person to move from one place to another in order to work—see below)
• Avoid making promises or guarantees you can’t keep
• Create and follow an interview checklist
• Follow your handbook!

Fraudulent Promises

When employers make promises and then renege, it could bring a charge of fraud, West says, if:

• The employer intentionally deceived the employee concerning a material fact
• The employee reasonably relied on the false representation and was damaged

Are class action lawyers peering at your pay practices? It’s likely, but you can keep them at bay by finding and eliminating any wage and hour violations yourself. Our editors recommend BLR’s easy-to-use FLSA Wage & Hour Self-Audit Guide. Try it for 30 days … on us.

West’s basic rule is simple: Be truthful. When you are “selling” a prospective employee, be sure to avoid overselling, West says.  Avoid statements like these:

• Job security: You’ll have a “permanent” job,” “You’ll be here forever,” “You’ll have a place with us as long as you do a good job.”
• Stability of the company: “You’ll make a bundle on our stock option plan.”
• Career development: “Everyone gets promoted in their first year with us,” “I guarantee the following personal development actions.”
• Salary inducements: "We have the most competitive" salaries, the "best" benefits, "assured" growth.” Also be wary of highly favorable comparisons with the applicant’s existing job.

Making sure comp decisions comply with the law—a major concern for every compensation manager. How can you be sure your operations will pass legal muster? Only one way—audit before ”they” do.

"They" might be the feds, your employees’ lawyers, or even bankers deciding you don’t get that loan because improperly classified workers represent a huge potential liability.

Experts say that it’s always better to do your own audit, and fix what needs fixing, before authorities do their audit. Most employers agree, but they get bogged down in how to start, and in the end, they do nothing. There are, however, aids to making FLSA self-auditing relatively easy.

What our editors strongly recommend is BLR’s FLSA Wage & Hour Self-Audit Guide. It is both effective and easy to use, and even won an award for those features. Here’s what customers like about it:

• Plain English. Drawing on 30 years of experience in creating plain-English compliance guides, our editors have translated the FLSA’s endless legalese into understandable terms.

• Step-by-step. The book begins with a clear narrative of what the FLSA is all about. That’s followed by a series of checklists that utilize a simple question-and-answer pattern about employee duties to find the appropriate classification.

All you need to avoid exempt/nonexempt classification and overtime errors, now in BLR’s award-winning FLSA Wage & Hour Self-Audit Guide. Plus receive the special report Top 100 FLSA Overtime Q&As for a limited time. Find out more.

• Complete. Many self-audit programs focus on determining exempt/nonexempt status. BLR’s also adds checklists on your policies and procedures and includes questioning such practices as whether your break time and travel time are properly accounted for. Nothing falls through the cracks because the cracks are covered.

• Convenient. Our personal favorite feature: A list of common job titles marked “E” or “NE” for exempt/nonexempt status. It’s a huge work saver.

• Up to Date. If you are using an old self-auditing program, you could be in for trouble. Substantial revisions in the FLSA went into effect in 2004. Anything written before that date is hopelessly—and expensively—obsolete. BLR’s FLSA Wage & Hour Self-Audit Guide includes all the changes.

You can examine BLR’s FLSA Wage & Hour Self-Audit Guide for up to 30 days at no cost or obligation. Go here and we’ll be glad to arrange it.