By Barbara J. Garder, J.D.
HIRING – EMPHASIZE THE POSITIVE
Hiring well is a talent and firing effectively is a skill. If you hire well, you will have to engage your firing skill less frequently. Eagerness to fill an opening should not prevent you from performing a thorough consideration process to hire the best choice for your firm.
Following are some practical pointers regarding handling the hiring process and a variety of issues to consider prior to making the decision to terminate an employee’s employment.
1. Before You Interview
Items to consider when you actually interview candidates for an opening include, but are certainly not limited to, the considerations addressed by the following questions.
• Do you have a good understanding of the job?
• Do you have a written ADA-appropriate job description with concrete descriptions of the essential functions of the job and the educational, experience, and physical and mental requirements of the job?
• How will you advertise the opening?
• What media will you use to attract and communicate with candidates?
• Are the resources you plan to use going to give you a broad exposure to the market of candidates?
• What will be your candidate screening process?
• At what point in the interviewing process will candidates be invited to your work site?
• Are your interviewing and work areas accessible to a qualified individual with a disability?
• Who within your organization will be involved in the interviewing process?
• Are the interviewers properly trained in what to say or not to say in an interview? (There are many sources for a list of what to say and not to say in an interview. A source I appreciate using for many employment issues is the Bureau of National Affairs’ online Human Resources Library. The Texas Workforce Commission’s site has many informative resources for employers, as do the Equal Employment Opportunity Commission’s site and the Department of Labor’s Web site.)
• Do you have a summary of your benefit programs, vacation, sick/personal leave, retirement plans, and the like to share with candidates?
• Decide how many meetings will be required to complete your interviewing process with the candidate—for example, will you be ready to extend an offer right away to the appropriate candidate, or will you want always to have the most favored candidate(s) return to the office again?
• Do you require each candidate to complete an Application for Employment?
• Has your Application for Employment been reviewed recently by an employment lawyer?
• How will you address the issue regarding whether the candidate has any criminal convictions?
• Will you include a question such as “Have you ever been convicted of a criminal offense? Please include driving while intoxicated or driving under the influence of drugs. Exclude minor traffic violations.” (Include a note such as, “IMPORTANT : A conviction does not mean you will not be offered a job. [Employer] will consider the offense for which you were convicted, the circumstances surrounding the conviction and the date of the conviction as important factors in making its decision.)
Be aware that the EEOC is examining how criminal records should be used in an employer’s decision-making process when considering candidate. While some industries (such as banking, financial services and insurance) are required to check criminal records, others should consider how a criminal conviction would relate to the job opening. Some attorneys recommend not checking criminal records until after a conditional offer of employment has been extended.
• Who will check references for the candidate? If you use an outsider services for reference or other pre-employment checks, make sure that you have the candidate sign an appropriate Fair Credit Reporting Act Authorization and Release before you begin the checks.
Consider formulating a hiring checklist to make sure you are consistent and complete in your pre-employment checks and hiring process.
2. During the Interview
You may want to develop a list of skills and experiences you require from the ideal candidate so that you may keep consistent records about each candidate. You can develop the list from the written job description, which you should definitely have. In addition, it may be helpful to prepare a list of questions for which you will obtain answers from each interviewee based on your skills and experience list.
Telephone interviews may assist you in screening candidates. However, since most of our communication as humans is achieved in nonverbal ways, you may want to emphasize in-person interviews to achieve a more accurate and complete understanding of a candidate.
Send the Application for Employment to the candidate in advance of the interview so that the candidate has time to complete the application in detail. Candidates should complete an application even if they have a resume to present, since the application asks for information in a consistent manner from all candidates.
Make sure that your receptionist or other office assistant is informed of candidates’ interview times so that the staff person can assist you by greeting the candidates and making sure that they are announced right away so that your interviews begin at the scheduled time.
Greet the candidate warmly and proceed to a quiet conference room or office where you may remain uninterrupted by phones or coworkers. Put the candidate at ease by explaining what process you expect to go through in the next few minutes. “I anticipate this first meeting between us will last about 30 minutes. I have reviewed your resume, but would like to review the application you just handed me. In just a moment we will discuss your work experience and educational background, and then I will ask you questions as we review your application and resume. Then I will share some information about the opening and how it fits in our organization. Lastly, I will share information about our benefits package.”
Begin your interview in reverse chronological order, by using open questions to ask the candidate to describe his or her current job, with whom the candidate works, what has changed in about the job over the course of time, and what caused the candidate to consider looking for other employment. Asking open questions that require the candidate to talk and listening to the candidate’s answers will provide you with infinitely more information than if you talk more than the candidate. Make sure you ask the candidate for the complete spelling of the names of all supervisors or managers for whom the candidate worked.
Continue the same questioning for each position the candidate has held, making sure that any gaps in time between one job and the next are explained by the candidate. Be particularly aware of unexplained gaps, indistinct work descriptions and conflicting information.
If your instincts indicate that “red flags” exist, try to tie down the inconsistency or other issue.
Take notes about details given about work experience, the individual’s reactions to, descriptions of and dealings with coworkers, supervisors and managers, the candidate’s reasons for leaving a position, and the interviewee’s demeanor. If you prepared a matrix or checklist of questions, make sure you have gathered enough information to complete it.
Giving the candidate a chance to ask questions and share information with you throughout your meeting keeps the candidate more relaxed, informal and informative. However, you should maintain control of the conversation and its direction. You will find that a candidate who “takes over” an interview will most likely not be the best candidate for most of your staff openings.
At the end of the interview, let the candidate know what the next steps will be in your consideration process, what checks you will make, and when a decision might be expected.
Once you decide on a candidate, perform your due diligence: reference checks with previous employers, criminal records checks, conflicts checks, etc. (Check the employer’s Web site to confirm the names of references, or call the main number for the business to make sure that the references hold the position the candidate indicated.)
Extend a conditional offer if you are concerned that the candidate may be taken off the market quickly. Tell the candidate you are extending a conditional offer for the (position) at (base pay rate) and that the offer is conditional upon completion of satisfactory (reference/criminal records/conflicts) checks.
Once you have completed your checks, extend the offer or inform that candidate that the conditions have been removed from your offer. Be prepared to provide a written offer letter, making sure that if you do, you consider adding an “employment at will statement.” For example, you might want to include, “The Firm’s offer of employment is not an employment contract. Rather, your employment can be terminated, with or without cause and with or without notice, at any time at the discretion of either yourself or the Firm. Further, you should understand that no management official other than the (Management Committee/Employment Committee/Managing Partner/President) or its designated representative has any authority to enter into any agreement contrary to the foregoing or make any oral assurance or promise of continued employment. Any such agreement must be in writing.”
3. On the Job
Make sure the new employee’s orientation/on-boarding, training plan, work site, and initial assignments are readied for the new employee prior to his or her employment. Schedule a first-day lunch with coworkers in the employee’s work area to assist the employee in becoming acquainted with colleagues.
Touch base with the new employee regularly to make sure the individual is learning his or her job, has the necessary training and support to grow in the job, and is becoming comfortable in his or her knowledge of the job, the coworkers, supervisors and managers, and your firm. Give feedback to the new employee to let him or her know what he or she is doing well and what needs improvement.
FIRING – AVOID LITIGATION A. Introduction: Avoid a Finding of Pretext
Many employment terminations, especially discrimination cases, turn on the issue of pretext. It is not likely that an employer will document a personnel file, “Fired because of age.” Therefore, most discrimination cases are proven by circumstantial evidence. And proof of pretext is among the strongest type of circumstantial evidence. The United States Supreme Court explained this principle well:
In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as affirmative evidence of guilt. Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (emphasis supplied). So how does one avoid the finding of pretext?
B. Ten Ways to Avoid Problems.
1. Ignoring issues and signs of trouble.
Many managers resist dealing with problems directly. It is the “ostrich in the sand” approach: do not mention the problem and hope that it will go away. The opposite is true. If you do not deal with a problem and address it head-on, it will get worse.
2. Failing to adequately investigate claims.
This is similar to the first issue, but it is more often found when a manager simply takes the word of a problem employee without getting to the bottom of the situation, or without thoroughly investigating to find the truth.
One difficulty, however, is confidentiality. When investigating problems, you must contain the information very tightly and talk only to those who have personal knowledge. Also, talk to other employees with an HR representative present and in a very discrete manner. If you do not have an HR manager, have another partner present. Obtain a pledge from each employee that he/she will not further discuss the matter with anyone else.
Do not give specifics to third-party employees or witnesses. Ask only very open-ended questions so that you do not inform the neutral employee or witness of the details of the problem, which he/she may not even know. Also, hold the meeting at a discrete time so that other employees are not likely to notice.
3. Retaining problem supervisors.
Supervisors are your primary front line for dealing with employees, and you must rely on and trust in them to effectively control daily problems. If the supervisor is a problem, that can let other matters get out of control, and the situation will become exponentially worse.
4. Failing to properly document events.
You should be very factual in your approach to documenting potential problems, and be accurate. At the time, you may not know what is relevant or important, so it is advisable to make factual notes at the time of your observations and conversations.
5. Unorganized, inadequate files.
Missing or lost documents can have a devastating result upon the company if there is ever a lawsuit, especially in the discrimination context. A federal regulation requires the company to maintain files from one year from the date of any termination, and if a charge of discrimination is filed, the records must be maintained until the litigation is completed. See EEOC regulation, 29 C.F.R.§ 1602.14.
Also, Texas law holds that a party has a duty to preserve evidence when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718 (Tex.2003).
First, without the records, the company has a difficult time proving what actually happened. But worse, if the plaintiff is able to prove that the records were intentionally destroyed, the plaintiff may be able to obtain a spoliation instruction to the jury that the jury may infer that the destroyed information was adverse to the company and favorable to the plaintiff.
6. Failing to give employees adequate notice and opportunity to remedy their deficiencies.
Some employees, especially new employees, may not be aware of their deficiencies and may honestly be willing to try to improve. Therefore, it behooves you to give the employee a good explanation of how his/her performance is inadequate with sufficient time and training for the employee to make the needed adjustments.
These meetings should be formal, they should be held in the your office with the HR representative or another partner present, and the substance of the deficiencies and recommended changes should be documented. However, the meeting should be held discretely so as not to call undue attention to the event. The employee should be requested to sign the document to signify that he/she was given adequate notice, and the employee should be given a copy of the notice.
This process should be presented in a way to show the employee that the company is truly attempting to help the employee. And in the first instance, the employee should be given the benefit of the doubt.
However, if after adequate time and training the employee still does not improve, it is doubtful that he/she will do so. It is not a good idea to keep a poor-performing employee, and he/she should be terminated after it is clear that he/she is not going to change.
7. Failing to follow through with consequences.
This problem is similar to number 1 – the manager is weak and does not take the effort to monitor the problem employee after the counseling session. This takes time and dedication. It is the only way to know with reasonable certainty whether, in fact, the problem employee is going to improve.
8. Lack of documentation to support reasons for termination.
Along with the continuing documentation of poor performance, the final decision of termination should be documented and it must be consistent with the previous documentation of deficiencies. This will be evidence of the non-discriminatory reason necessary to prevail should there be a lawsuit filed by the terminated employee.
9. Termination letter which does not mention the reason for termination.
When the employee is terminated, he/she should be presented with a letter concisely stating the reason for the termination. Again, the reason must be consistent with the documents created during the counseling sessions and the prior deficiencies. Also, the employer cannot change the reason, else it may be proof of pretext.
Therefore, the manager should give much thought about the wording and about the reasons, from the beginning to the end of the entire process.
10. Lack of proper severance payment and release.
Unless the employee is a poor performer, as discussed above, it is recommended that an employee who is being terminated be paid an amount of severance with a release signed. If the company has a severance policy, the amount should be consistent with the policy. If there is no policy, the severance should be one-two weeks of salary for each year of service.
The severance payment serves as consideration for the release, making this a binding contract. The employer actually is “buying its peace” to avoid a future lawsuit. And this can be money well spent. A few weeks of severance is much less costly that several years of attorneys fees.
CONCLUSION
For good hiring, prepare thoroughly for interviews, interview with a focus on handling candidates consistently, listening carefully to what a candidate says, and checking the candidate’s background thoroughly may help you prevent a hiring disaster that drives you to a difficult employment termination.
To avoid litigation from terminations, follow the rules above, and be consistent.
Barbara Gardner, board certified in Labor & Employment Law, has practiced over twenty-five years. As a trial lawyer, she has won numerous seven-figure verdicts. Ms. Gardner also counsels individuals and corporations to avoid employment problems. She has been interviewed by Houston’s Fox News Channel 26 and publishes extensively on employment law.
* Credit is given also to Brook Prye, Human Resources Manager, for Porter & Hedges, L.L.P., who assisted in drafting and presenting this paper at the Second Annual Law Practice Management Program in February 2009.
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