Anyone who has worked in construction or engaged in a handiwork hobby knows the adage: measure twice and cut once. This alert is the first of three in a series aimed at equipping employers to take proactive steps (i.e., measuring twice) to avoid liability and pitfalls at three critical points in the employment lifecycle: hiring, during employment (including performance reviews), and termination of employment.
As the economy in the Valley continues to improve, employers are hiring new workers to meet the growing business needs. Often, the immediate need for additional workers can lead to a hurried hiring process. Recruiters are moving at fast paces; interviews are taking place in between meetings; and managers are making hiring decisions to meet their workflow needs. Amid the fast-paced environment, employers are encouraged to take a moment to stop and ensure that those on the front-lines of hiring are engaged in lawful employment practices and making the right hiring decisions.
First of all, individuals with hiring authority and those conducting interviews should be trained to avoid unlawful discrimination. Both federal law and California state law prohibit discrimination in the hiring process, and agencies such as the EEOC view many questions commonly asked during the hiring process (such as questions regarding citizenship, date of high school graduation and physical limitations ) as evidence of potential discrimination, so training is critical. Hiring managers are not required to provide applicants with an explanation of the reasons for which they were not hired, and we generally recommend against doing so. They should, however, have in mind a clear explanation of the reasons for which non-chosen applicants were not as qualified or well-suited for the position as the person hired, which can be offered to justify a decision if it is later challenged in court or by an administrative agency. Training managers on how to avoid discrimination in the hiring process is part of “measuring twice.”
Second, those with hiring authority should carefully consider the job description, position listing, qualifications required, and other communications regarding the position to ensure that they accurately reflect the needs of the employer. Oftentimes employers will reuse old job descriptions even though needs of the actual position have changed. This can result in drawing the wrong applicant pool or hiring someone with expectations that are different from the actual position and actual needs. Employers expend significant money conducting job searches and hiring employees and this money can be a waste if the wrong person is hired. Measuring twice in this instance means consider the needs of the employer before casting the net.
Third, once a candidate is selected, employers are wise to take a moment—before extending an offer—to make the final decision as to whether the candidate is the right person for the position. It is much easier to decide not to make an offer than it is to terminate employment with someone who is not the right fit. Employers often hire an individual because they need someone quickly, but in the end, moving too quickly can cause more problems than good. In this case, the theme is “measure twice before hiring” in order to prevent increased expenses and possible exposure at termination.
Finally, once the decision is made to extend an offer, employers should pay special attention to drafting offer letters that provide the necessary information for the offeree to understand the position they are considering. It is important to ensure that the offer letter is accurate and complete. Also, under new California law (Labor Code section 2810.5) employers must provide a wage and employment notice to all employees and, with regard to commissioned employees, the law (Labor Code section 2751) requires written contracts. Finally, if your company performs background checks on new employees, be sure to understand the law and follow it closely.
Sound hiring practices include the prevention of potential liability and also the avoidance of mistakes that could lead to future liability resulting from frequent turnover. Hopkins & Carley attorneys can provide training in the prevention of discrimination in hiring and work with employers to discuss other ways to prevent exposure caused by failing to measure twice.
Continuing in the Measure Twice series, our next update will address decision-making during employment.
If you have any questions regarding potential pitfalls in the hiring process, or any issues relating to employment, we invite you to contact one of our attorneys:
Daniel F. Pyne III
Richard M. Noack
Ernest M. Malaspina
Erik P. Khoobyarian