Continuing the Faruki PLL blog series relating to the risks of departing employees, this post addresses the best practices in hiring, performance standards, and documentation.
When an employer is soliciting and evaluating the right candidate, the first item on the agenda is crafting a well written job posting for the position. The Society for Human Resource Managers ("SHRM") has resources for employers to use when crafting the job posting.
In the job posting, the employer should indicate equal opportunity employment and be aware of words that can indicate a preference for a specific group of people, such as protected classes. For example, identifying that a "waitress" is wanted implies that the employer is specifically seeking a woman for the role. Any specifications for a role should be based on the "bona fide occupational qualifications." A person's gender, or other protected class, is very rarely a "bona fide occupational qualification" but may be when the employer is hiring an actress or fashion model. For more on the equal employment opportunity laws applicable to Ohio employers, please visit our previous blog post here.
Having a written job posting as opposed to just word of mouth advertising is important because word of mouth advertising alone may only reach a specific subset of people and may perpetuate past discrimination or disparate impact. A wide range of recruiting mechanisms should be used to recruit a diverse set of candidates qualified for the role.
Applications should be consistent for similar jobs and should request similar information from each applicant. The information requested should relate to the position and should not include unnecessary personal information (e.g., how many children someone may or may not have, whether the applicant is married, whether the applicant plans to become pregnant, the applicant's exact age, the applicant's photograph, or the applicant's ancestry).
Having a written application that is retained for a set period of time is crucial so that the business can refer to the application during and after employment. Should the employer ever get sued by the employee, the employee will ask for the application materials if the employee did not keep a copy of the application themselves. Further, the employer will be able to rely on the application materials in a lawsuit.
Similar to applications, the interview process should be consistent for similar jobs. Interviewers should be trained on appropriate interview questions and to avoid asking questions that may be too invasive and irrelevant to the job.
In the state of Ohio, employers are permitted to conduct criminal background checks on potential employees as long as the employer has the name, current address, date of birth, social security number, and other identifying characteristics. Pursuant to Ohio law, the employer cannot access sealed conviction records or records that were sealed in juvenile court. Ohio employers can choose not to hire an individual based on their background check, but employers should apply the same policy for all applicants. For example, if a man and a woman both committed a similar misdemeanor, the employer should make the same hiring decision about both individuals without factoring in gender.
In Ohio, employers can drug test applicants and employees. The employer should cover the cost of the drug test and the drug test should be conducted in a hospital or another approved institution. Ohio employers can prohibit applicants and employees from using, possessing, or distributing medical marijuana, despite the fact that it is legal in the state of Ohio. Employers should create a written policy relating to drug testing and apply that policy to all applicants and employees in the same fashion.
Employees should be well aware of the performance standards for which they will be evaluated against. The performance standards should be relevant to their jobs and should be documented along with the performance management process. Performance reviews, based on the performance standards, can take a variety of different forms including ranking, 360-degree feedback, and rating scales. Should an employee have a poor performance review, employers can consider a performance improvement plan before deciding on termination (which is to be more thoroughly discussed in an upcoming blog post). Employers should work with counsel to ensure that the design and implementation of the performance standards and the performance management process is compliant with equal employment opportunity laws and other applicable laws and regulations.
Further, as stated in previous blog posts, managers and employees should be trained on the performance management process and documentation should be kept demonstrating an employee's effective or ineffective performance.
Documentation is the key to protecting employers and mitigating risk. Applications and personnel records should be kept for a set period of time and employers should consider implementing a documentation retention policy to dictate how long these files should be retained. The general rule is that the documents should be kept six years past the employee's final day of employment.
Documenting communication with employees is also crucial. It is best to communicate with employees in writing. Emails from a work email address are the preferred written communication method so that those emails will be available at a later date if needed in a potential lawsuit. Phone calls should be avoided.
For important decisions related to termination, employers should consider sending the employee a formal letter and documenting that letter or other written communication in the employee file.
This blog contains some of the best practices related to pre-termination planning but is not exhaustive. It is important that employers work with counsel to develop policies related to hiring, performance standards, and documentation retention policies that comply with all applicable laws and take into account the specific needs of each employer's business.
Pre-termination planning is only one small part of risk mitigation measures for employers. Check back soon for more discussion on how to mitigate risks and properly plan for departing employees.