Hiring and Firing: Do It Right, Or Else
Corrections or additions?
These articles by Bart Jackson and Michele Alperin were prepared for the May 16, 2001 edition of U.S. 1 Newspaper. All rights
reserved.
Heavy Laws of Labor: Kevin Donovan
B>Kevin Donovan, an attorney with Carpenter, Bennett
& Morrissey of Newark, hefts the huge tome and drops it. As all 1,600
pages of the latest federal laws regarding labor and employment (plus
the 120-page index) thud onto his desk, he shakes his head. Even were
an employer miraculously able to ingest this year’s snarl of often
conflicting statutes, he still would not be safe from unknowingly
stepping into a lawsuit. An equally voluminous and tangle of state
and local laws contains yet more fine legal points.
Even if there is not time enough to learn about all the legal taboos
in your workplace, the National Business Institute says you can still
protect yourself. In an attempt to provide this basic armor, the NBI
offers its annual day-long seminar on “Fundamental Issues in Human
Resources Law.” The course will be given twice in our area. On
Tuesday, May 22, at 8:30 a.m. at the East Windsor Ramada Inn, attorney
Steve Weinstein of Livingston’s Dunmetz Marcus law firm and
James P. Lidon of Newark’s Carpenter, Bennett & Morrissey speak.
On Wednesday, May 23, at 8:30 a.m. in Cherry HIll, Todd Ewan
of Princeton’s Saul Ewing speaks along with Mark Manta of Manta
& Welge in West Trenton.
Both seminars will cover the same topics, including the legal aspects
of hiring, record keeping, new employment law, sexual harassment,
discrimination, and more. This course provides a continuing education
credit for attorneys, yet also aims to inform and update employers
and human resources people. Cost is $219 for the day. Call 715-835-7509.
“To a very great extent,” says Donovan, “the law has done
its job. The really blatant discriminations are very rare.” Donovan,
a West Windsor resident, who has worked in labor/employment law since
graduating from University of Virginia Law School in 1985, feels that
“most discrimination offenses nowadays are inadvertent.” But
alas the penalties loom just as large. Did you inquire about the kids
while interviewing that last candidate? That was nice of you. You
not only put her at her ease, but opened yourself up to an unfair
hiring practice suit. Legally, she can link arms with a lawyer and
claim you rejected her because she had children.
Legal pitfalls such as these prickle every aspect of the workplace
and honest ignorance makes an expensive plea. Yet despite the seeming
vulnerability, Donovan says that the aware employer can cushion himself,
in every area, against a crushingly costly landing. Here are some
areas where advance knowledge could prevent a lawsuit:
Sexual Harassment. According to the Supreme Court, yourfreedom of speech is not limited by audience appreciation — inpublic at least. Not so in the workplace. At work, if it annoys me,I can sue you for saying it. Virtually nothing in this arena is toofrivolous to be taken seriously (and expensively) by the judicialsystem. Currently, Donovan points out, “there exists substantialtension between First Amendment vs. anti-harassment advocates.”But don’t count on this safety net.The best defense against harassment litigation is to establish anin-house mechanism to handle complaints. It would be wise to holda brief, mandatory workshop on the legal bounds of workplace behavior.Follow up with a standing investigating committee that looks intoeach claim.Todd Ewan, the labor/employment attorney with Saul Ewing, says thatNew Jersey companies have successfully defended themselves againstalleged victims who ignored their firm’s claims programs and soughtinstead to go directly to the Equal Employment Opportunities Commission.But why must the company pay merely because some leering, abusivebozo verbally molests co-workers? Typically, explains seminar speakerJames Lidon, if the abuse occurs between employees on the same level,and the company investigates the claim, the employer may be judgedblameless. Yet if the abuser is a supervisor, the firm’s involvementincreases.The Employee Handbook. This innocuous-looking documentis responsible for millions annually in litigation fees. Donovan haswritten a law review article on the subject (find it and others atwww.carpben.com), and warns that basically every item in a handbookcan be construed as a promise, or even a binding contract. Upon reading”At this company, we never fire people without just cause,”your new employee may blithely infer that his handbook is promisinghim employment for life. And he just may be able to prove it. Usually,a bold disclaimer stating that no information in this book is intendedas a promise or contract will suffice. But even with a disclaimer,some statements can come back to haunt you.Negligent Hiring. A safe workplace, once only a goal,is now the law of the land. OSHA requires the physical setting bedanger free, and now equally strict and important labor laws requirethe environment to stand socially secure. This laudable aim unfortunatelysets the employer on a tightrope. If the human resource manager inquirestoo deeply into a candidate’s background or refuses to give a formerfelon a break, he could fall into the discrimination liability abyss.However, if a healthcare facility which tends the vulnerable elderlyin unlocked dorm rooms hires an orderly thrice convicted of pettytheft, the employer might also be liable. Lidon advises his clientsthat in New Jersey the whole body of safe workplace law “presentsa murky picture.” To be on the safe side, employers might considerrunning a criminal records search on prospective hires.Job Requirements. “Any seemingly neutral job requirement,”says Donovan, “may statistically show bias and make the employerguilty of discrimination.” Innocently set standards, for instance,of height or strength, if challenged by, say, a female candidate,automatically demand the employer “make a showing of justification”as to that standard’s necessity for the job. Even requiring a highschool diploma has been ruled racially biased. When establishing virtuallyany job stricture, it is wise to run it by legal counsel.The scroll of employer/labor legal considerations rolls ever onward:immigrant hiring statutes, proper record keeping, complying with civilrights, and more. If any caveat comes through the murk of all thesestatutes and taboos, it is the need for the employer to seek frequent,usually brief, counsel with a labor/employment attorney. That extraphone call prior to making a decision may be annoying, but it maybe less painful than going before a judge and pleading ignorance ofthe law.— Bart JacksonTop Of PageHiring and Firing: Do It Right, Or ElseStart a new business and, pretty soon, hiring begins.As the company grows, hiring inevitably leads to an occasional firing,and, if the company is large enough, a layoff is even possible. Indeedemployment charts the ebb and flow of any business. Yet, says JohnMacDonald, an attorney at Stark & Stark who specializes in employmentissues for the securities industry, “employment is a risky area,”with “a lot of potential exposure.” Thus the genesis of humanresources departments, with a job that includes protecting the company.MacDonald and his colleague Thomas Lewis speak at the HumanResources Management Association on “Hiring? Terminations? Doit right or you may hear from someone’s lawyer” on Thursday, May24, at 8 a.m. at the Nassau Club. Call 609-883-3000.Human resources professionals serve as legal educators and guidesin hiring and firing for company management, training managers inwhat they should and should not do. “If a human resources persondoesn’t keep an eye on the process and help guide management throughit,” says MacDonald, “management can make some pretty significantmistakes.”MacDonald came to employment law via the securities industry. Aftergraduating in 1989 from the University of Richmond with a degree inhistory, he worked in Princeton for two years at Bloomberg. In 1994he received a law degree from the University of Bridgeport Schoolof Law (now Quinnipiac School of Law). After law school, he workedin northern Jersey doing securities arbitration, which, he says, “developedinto a concentration in employment and how it affects the securitiesindustry — issues involving brokers and their employees.”He has advice on a number of areas where the advice or presence ofhuman resources professionals plays a critical role in heading offlitigation.Involve human resources early in termination decisions.Some companies make the mistake of getting human resources involvedonly “at the point when they are getting the person out of thedoor,” says MacDonald, expecting them to take care of the exitinterview and paperwork. If they step in earlier, they can often savethe company from liability.When people are being terminated, they often have a hard time facingmistakes they have made, and want to blame someone else. Human resourcesshould be there to help. “If human resources does its job properlyand treats a person professionally and explains the reasons for thetermination well,” MacDonald says, “they may be able to dissuadethem from bringing suits.”Ensure that terminations are justified. If the reasongiven for a termination “flies in the face of reality,” saysMacDonald, “then you’re inviting a claim that … the reason givenwas pretext and the real reason was something else.” And thatsomething else, in the employee’s mind, could include illegal discrimination.Document reasons for termination. “When terminatingsomeone,” says MacDonald, “you want as much of a documentarybasis as possible,” preferably performance reviews that are thorough,done on a regular basis, and, if possible, acknowledged by the employee.Performance criteria should be standardized throughout the companyor the position. In lieu of a formal evaluation system, he says, “document as much as you can the reasons the termination is going totake place.”Prevent retaliatory firings. Firing an employee in retaliationfor filing a complaint with the state civil rights division or theEEOC or for bringing a lawsuit can be particularly dangerous for anemployer. If retaliation is proven, then the company can be responsiblefor damages, even if the plaintiff fails to prove discrimination.MacDonald says some savvy employees, who sense they may be fired,may even file a discrimination claim to set the employer up.Proceed carefully with layoffs. With the economy slowingdown, one employment issue on the horizon is layoffs. “Make surethe layoff is done uniformly and fairly,” says MacDonald, “sothat no particular group is being singled out or is perceived to beso.” For example, do not target an age or minority group. Andno matter who will be affected, he advises employers to “be ableto articulate a legitimate business reason why the lay-off is necessary.”Employers need also note that they are required to give 60-days noticebefore closing down a plant with 50 or more employees.In sum, human resources can be critical to a company’s success.”If they do their job correctly,” says MacDonald, “theycan prevent liability for the company and problems for employees.”— Michele AlperinPrevious StoryNext StoryCorrections or additions?This page is published by PrincetonInfo.com— the web site for U.S. 1 Newspaper in Princeton, New Jersey.
