Hiring and Firing: Do It Right, Or Else

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These articles by Bart Jackson and Michele Alperin were prepared for the May 16, 2001 edition of U.S. 1 Newspaper. All rights

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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, your

freedom of speech is not limited by audience appreciation — in

public 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 too

frivolous to be taken seriously (and expensively) by the judicial

system. Currently, Donovan points out, "there exists substantial

tension between First Amendment vs. anti-harassment advocates."

But don’t count on this safety net.

The best defense against harassment litigation is to establish an

in-house mechanism to handle complaints. It would be wise to hold

a brief, mandatory workshop on the legal bounds of workplace behavior.

Follow up with a standing investigating committee that looks into

each claim.

Todd Ewan, the labor/employment attorney with Saul Ewing, says that

New Jersey companies have successfully defended themselves against

alleged victims who ignored their firm’s claims programs and sought

instead to go directly to the Equal Employment Opportunities Commission.

But why must the company pay merely because some leering, abusive

bozo verbally molests co-workers? Typically, explains seminar speaker

James Lidon, if the abuse occurs between employees on the same level,

and the company investigates the claim, the employer may be judged

blameless. Yet if the abuser is a supervisor, the firm’s involvement

increases.

The Employee Handbook. This innocuous-looking document

is responsible for millions annually in litigation fees. Donovan has

written a law review article on the subject (find it and others at

www.carpben.com), and warns that basically every item in a handbook

can 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 promising

him employment for life. And he just may be able to prove it. Usually,

a bold disclaimer stating that no information in this book is intended

as 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 be

danger free, and now equally strict and important labor laws require

the environment to stand socially secure. This laudable aim unfortunately

sets the employer on a tightrope. If the human resource manager inquires

too deeply into a candidate’s background or refuses to give a former

felon a break, he could fall into the discrimination liability abyss.

However, if a healthcare facility which tends the vulnerable elderly

in unlocked dorm rooms hires an orderly thrice convicted of petty

theft, the employer might also be liable. Lidon advises his clients

that in New Jersey the whole body of safe workplace law "presents

a murky picture." To be on the safe side, employers might consider

running a criminal records search on prospective hires.

Job Requirements. "Any seemingly neutral job requirement,"

says Donovan, "may statistically show bias and make the employer

guilty 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 high

school diploma has been ruled racially biased. When establishing virtually

any 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 civil

rights, and more. If any caveat comes through the murk of all these

statutes and taboos, it is the need for the employer to seek frequent,

usually brief, counsel with a labor/employment attorney. That extra

phone call prior to making a decision may be annoying, but it may

be less painful than going before a judge and pleading ignorance of

the law.

— Bart Jackson

Top Of Page
Hiring and Firing: Do It Right, Or Else

Start 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. Indeed

employment charts the ebb and flow of any business. Yet, says John

MacDonald, an attorney at Stark & Stark who specializes in employment

issues for the securities industry, "employment is a risky area,"

with "a lot of potential exposure." Thus the genesis of human

resources departments, with a job that includes protecting the company.

MacDonald and his colleague Thomas Lewis speak at the Human

Resources Management Association on "Hiring? Terminations? Do

it right or you may hear from someone’s lawyer" on Thursday, May

24, at 8 a.m. at the Nassau Club. Call 609-883-3000.

Human resources professionals serve as legal educators and guides

in hiring and firing for company management, training managers in

what they should and should not do. "If a human resources person

doesn’t keep an eye on the process and help guide management through

it," says MacDonald, "management can make some pretty significant

mistakes."

MacDonald came to employment law via the securities industry. After

graduating in 1989 from the University of Richmond with a degree in

history, he worked in Princeton for two years at Bloomberg. In 1994

he received a law degree from the University of Bridgeport School

of Law (now Quinnipiac School of Law). After law school, he worked

in northern Jersey doing securities arbitration, which, he says, "developed

into a concentration in employment and how it affects the securities

industry — issues involving brokers and their employees."

He has advice on a number of areas where the advice or presence of

human resources professionals plays a critical role in heading off

litigation.

Involve human resources early in termination decisions.

Some companies make the mistake of getting human resources involved

only "at the point when they are getting the person out of the

door," says MacDonald, expecting them to take care of the exit

interview and paperwork. If they step in earlier, they can often save

the company from liability.

When people are being terminated, they often have a hard time facing

mistakes they have made, and want to blame someone else. Human resources

should be there to help. "If human resources does its job properly

and treats a person professionally and explains the reasons for the

termination well," MacDonald says, "they may be able to dissuade

them from bringing suits."

Ensure that terminations are justified. If the reason

given for a termination "flies in the face of reality," says

MacDonald, "then you’re inviting a claim that … the reason given

was pretext and the real reason was something else." And that

something else, in the employee’s mind, could include illegal discrimination.

Document reasons for termination. "When terminating

someone," says MacDonald, "you want as much of a documentary

basis 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 company

or the position. In lieu of a formal evaluation system, he says, "

document as much as you can the reasons the termination is going to

take place."

Prevent retaliatory firings. Firing an employee in retaliation

for filing a complaint with the state civil rights division or the

EEOC or for bringing a lawsuit can be particularly dangerous for an

employer. If retaliation is proven, then the company can be responsible

for 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 slowing

down, one employment issue on the horizon is layoffs. "Make sure

the layoff is done uniformly and fairly," says MacDonald, "so

that no particular group is being singled out or is perceived to be

so." For example, do not target an age or minority group. And

no matter who will be affected, he advises employers to "be able

to articulate a legitimate business reason why the lay-off is necessary."

Employers need also note that they are required to give 60-days notice

before 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, "they

can prevent liability for the company and problems for employees."

— Michele Alperin


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