At A Glance:
- Hiring and firing employees can be legally treacherous for employers.
- Avoid asking personal questions during the hiring process, as this may later be used as grounds for a discrimination suit if the candidate is not selected.
- Firing employees is delicate. Taking the appropriate amount of time and preparing for the termination will help the process go as smoothly as possible.
Hiring and firing employees is an unavoidable and legally delicate aspect of running a practice. So delicate, in fact, that most largescale companies have human resources departments and legal counsel dedicated solely to dealing with the many intricacies and sensitivities of these two processes. Dedicated departments, however, are a luxury that most small medical practices cannot afford.
To help you avoid some of the major legal errors that can be made during both the hiring and firing processes, we asked General Counsel PC, Attorneys at Law, a law firm in McLean, Virginia, for permission to quote from their advice.
According to General Counsel, “The interview can be one of the most dangerous minefields an employer faces.”1 Following a few rules of thumb and checking your state’s regulations can help to avoid future problems.
It may seem like common sense not to ask an applicant about his or her sexual orientation or disability status during an interview. However, it can be easy to slip into a casual conversation that crosses legal boundaries and gives any candidate not chosen for a position grounds for a discrimination claim later on.
General Counsel specifies the following guidelines for hiring employees:
- Do not discriminate based on race, color, gender, religion, disability status, etc.
- Respect the applicant’s right to privacy regarding marital situation, economic background, and personal life
- Don’t imply things you can’t deliver, such as job security or benefits
- Observe all laws relating to minimum wage and hiring young or immigrant workers
- Follow Internal Revenue Service guidelines for hiring independent contractors
- Follow all federal and state requirements for new hires.
According to General Counsel, “Background checks are another large landmine that employers must treat with special care.” Special care is needed in this area because laws vary from state to state.
In some states, extensive background checks are required for certain types of jobs, such as child care; in others, preemployment background checks are banned in all forms. It is important that you pay special attention to your state’s laws regarding background checks.
General Counsel cautions that, under the Fair Credit Reporting Act, before engaging an outside agency to conduct a background check and prepare a report on a potential employee, the employer must obtain the applicant’s written consent. The employer must also provide a copy of the report’s findings to the applicant and allow him or her to challenge the findings before taking any adverse action.
Adhering to the guidelines described above will help you avoid making legal mistakes during the hiring process that may end up costing you a great deal in the end.
In much the same way that the hiring process can be a quicksand bog to a practice, the firing process is rife with hazards. As uncomfortable and undesirable for all parties as it may be, there will inevitably come a time when you need to fire an employee. It’s better to acquire a baseline understanding of the firing process now than to be scrambling and unprepared when the time does come.
First things first: Take a chill pill. Firing an employee when you are angry may be a decision you regret. Make sure that you have taken an appropriate amount of time to evaluate your decision before executing it.
It is also good practice to document the reasons for termination. The employee being fired should have a documented record that outlines the grounds for termination. If this history does not exist, you may need to take some more time to cool off before taking action—and to start documenting his or her unsatisfactory behavior.
Limit the Likelihood of Litigation
Offering a severance package is a good way to hedge against resentment on the part of the employee. However, General Counsel points out, careful consideration is needed regarding severance packages. The firm states that any severance agreement contingent upon the employee releasing claims against the employer should be drafted by an attorney. An improperly drafted release may have no legal force.
General Counsel also advises employers to have an observer present during the termination meeting, to document what is said; to draft a termination letter so that there is ample time to think about what to say and how to say it; and to be respectful during the termination. If the termination meeting is not cordial, the likelihood of legal action increases.
A variety of potential legal problems can be encountered in the hiring and firing of employees. Being informed about and operating within the confines of the laws of your state will help guide you and your practice toward appropriate decision-making and toward taking appropriate actions during these processes. If you are not certain about how to proceed during either the hiring or firing processes, retaining the services of an attorney may be worth the money.
1. Guidelines for Hiring or Firing Employees. General Counsel PC, Attorneys at Law website. generalcounsellaw.com/practice-areas/labor-and-employmentlaw/cornerstone-law/employment-guidelines/. Accessed July 20, 2018.