It’s a litigious world out there. Although today employers and applicants are exquisitely aware of employment laws, it’s common for people to file EEOC complaints and lawsuits for things that a generation ago would not have caused anyone to bat an eye.
Here are four of the biggest mistakes HR teams are making that are resulting in lawsuits for their employers and how you can avoid them:
Being too passive about risk management.
Some people seem to think that if their compliance effort consists of keeping binders updated, keeping the latest Labor Department posters on the break room bulletin board, and crossing items off of government lists, that these acts will be a magic talisman. Unfortunately today, that’s not good enough and indeed was always the bare minimum. HR professionals need to be proactive, staying on top of developments in state and federal regulation and compliance issues, monitoring key legal developments, and actively reaching out to managers and executives to educate them and give them the knowledge necessary to preventing needless risk exposure to the company.
Misclassify employees as independent contractors.
The IRS and U.S. Department of Labor have been clamping down on this one, big time, in recent years. It’s tempting for employers keen to avoid paying overtime and providing health insurance, unemployment insurance and workers compensation to look the other way when people hired ostensibly as independent contractors are actually functioning as statutory employees. Your role as an HR professional should be to help advise supervisors and management on what they can and cannot expect of anyone working as an independent contractor, and to help prevent the company from accidentally or deliberately violating the Fair Labor Standards Act.
A 2014 decision from the Labor Relations Board has actually made it much easier for workers to claim they were misclassified as employees. And another decision last month may make it much trickier for franchisors to limit the damage from franchisees misclassifying workers from reaching the franchisor level. The risk situation has changed substantially. Make it your business to know the rules – be the ‘subject matter expert’ in your company – and help your employers comply with the law.
Place discriminatory language in job ads.
Sure, most HR professionals know better than to place a job ad that reads “no Irish need apply.” We’ve come a long way. But in today’s environment, business owners, hiring managers and human resource professionals must be extremely aware of the language they use both in written advertisements and in interviews.
For example: Do you want someone with solid computer skills for a position? Then advertise for the specific set of skills that you want. But if you advertise for a “cutting-edge digital native,” you could well run into problems: The use of the phrase “digital native” could imply age discrimination, which would be a clear violation of the Age Discrimination in Employment Act of 1967, which among many other provisions also prohibits any expressions of age preference language in job postings. You’ll cause similar exposure to liability if you post ads looking for “recent grads” or language that can be interpreted as discouraging older applicants. The EEOC’s own website reads,
“It is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
Note that the federal Age Discrimination in Employment Act only applies to companies with 20 full-time employees or more.
Ask an illegal, discriminatory question during a hiring interview.
Most veteran HR workers know the basics here. There are some questions you just can’t ask an applicant, because you will create the inference of illegal discrimination. It’s not that the question’s illegal to ask, but if there is a lawsuit, the burden of proof will be on the employer to demonstrate that the company did not violate Title VII of the Civil Rights Act of 1964 (which prohibits discrimination on the basis of race, creed, sex or national origin), the ADEA (mentioned above), the Americans with Disabilities Act (ADA) or other applicable state or federal laws.
There are also problems with workplace interview questions concerning marital status, children, arrest or conviction record, your status as a veteran, or whether you are pregnant or have plans to have children. If you ask a question about any of these aspects of an applicant’s life, you leave the door wide open to accusations of illegal discrimination.
To stay out of trouble, focus on the requirements of the job itself. Don’t ask if the applicant has small children and when they have to be picked up from day care. Focus on whether the job requires evening work and whether the applicant can commit to that requirement. As long as you keep the inquiry strictly focused on job requirements and do not bring up religion, age (other than to ensure the applicant is legally able to work), race, national origin, gender, sexual orientation, pregnancy or children, marital status (except where the applicant asks about benefits for family members) or anything that might be a protected class under Title VII of the Civil Rights Act, the ADA, the Age Discrimination in Employment Act or anything else in federal or state employment law, you should be ok. Some examples:
Ask This Not That!
Ask, “Are you available on Saturdays?” Not, “Do you keep the Jewish Sabbath?”
Ask, “Can you work every weekend?” Not, “Are you in the Guard or Reserves?”
Ask, “What hours are you available?” Not, “Do you have children you need to pick up from school in the afternoon?
Ask, “Can you speak fluent Spanish?,” Not, “What country are you from?”
Ask, “Are you currently using illegal drugs?” Not, “when was the last time you used illegal drugs?” (Inquiries into one’s status as a recovering drug addict may violate the Americans with Disabilities Act.)
It can be tempting to skim over these processes in order to save time. But paying close attention to them will pay off for you and your company in the long run.