(Labor & Employment Newsletter – 2002)
Considerations for avoiding liability, protecting reputation
The hiring process is more perilous today than ever before. Employers must comply with a myriad of competing federal, state and local laws prohibiting discrimination, and also laws such as the Americans With Disabilities Act (“ADA”) which significantly limit what health related questions an employer may ask applicants. Employers who fail to exercise due care in selecting employees risk costly lawsuits, including suits initiated by patients. Medical practices must find ways to recruit, hire and retain qualified employees while avoiding a minefield of potential claims. This article will outline ten hiring tips, knowledge of which will help you to practice preventive action and thereby minimize risks associated with the hiring process.
1. Negligent Hiring.
Negligent hiring is a basis for employer liability to third parties. Employers who know, or who with reasonable diligence should have known, that their employees are incompetent or dangerous are potentially liable for injuries those employees cause to third parties. In a Virginia case, the court ruled in a suit against a hospital for the death of a newborn placed in a crib containing a scalding hot water bottle, that the hospital owed a duty to its patients to exercise “due care in the selection and retention of the nurse in charge of the patient.” In this case, the nurse had been discharged from her earlier employer because of gross negligence and improper patient care. The defendant hospital failed to check her references. Always do a thorough review of employment applications for all applicants from receptionists to professionals.
2. Establish Job-Related Qualifications For Each Position.
Identify what qualifications you need and can expect. Identify the qualifications that are related to the job for which you are hiring. Write a position description for each job. In brief, the description should contain the education requirements, the skills necessary to perform the position, any work related experience requirements, and the essential job functions of the position. The qualifications should be as objective as possible. This document can be useful both as an aid and guideline in the selection process, and as a primary defensive weapon in a “failure to hire” suit filed against you.
3. Fine Tune Your Interview And Selection Procedure.
Employment interviews are a valuable source of job-related information about applicants and can give you a more complete picture of their skills and abilities. Like other components of the selection process, interviews are subject to scrutiny under federal, state and local Equal Employment Opportunity (“EEO”) laws. It is helpful to develop standardized checklists for interviewers to fill out to later rebut claims that protected class applicants received different or more probing questions.
4. Review Your Documents For Potential Problems.
Review all employment applications to make certain that they are compliant with current EEO developments. Remember that in Maryland “sexual preference” is now a protected class. An application that contains an EEO statement listing “protected classes” should be revised to include “sexual preference.” The employment application is a fairly complicated document with many opportunities to run afoul of the law. If you remember to keep all inquiries job-related and that pre-employment inquiries should be limited solely to assessing whether an applicant meets those job-related requirements, you will have observed the cardinal rule of constructing a compliant application form.
5. Do Not Use Employment Documents As Note Pads.
While employment applications and other employment documents can provide the information necessary to rebut claims of discrimination and negligent hiring, a careless comment in a document can be a nearly insurmountable obstacle in litigation. Remember that all notes, memos and other writings are subject to discovery in litigation, and the interpretation of remarks in those notes may ultimately be left to the EEOC, a judge, or a jury. Avoid this problem by not marking up employment documents.
6. Medical Examinations And Disability-Related Inquiries.
The ADA prohibits discrimination against qualified individuals with disabilities in the recruiting, application, and hiring process, as well as in the terms and conditions of employment. The ADA applies to employers with 15 or more employees for each working day in a 20-week period. The ADA prohibits you from asking any “disability-related questions” in the pre-offer stage (1) on an application form, (2) in a job interview, or (3) in a background or reference check. An example of a common prohibited “disability-related question” is: “Is there any health related reason you may not be able to perform the job for which you are applying?” After offering an applicant employment, however, an employer may ask “disability-related” questions and also perform medical examinations. In fact, an offer of employment may be conditioned on the results of the post-offer “disability-related” questions or medical examinations.
7. Form I-9 Requirements.
In the wake of post-September 11th, it is more important than ever that the INS Form I-9 be properly completed by the applicant/employee and thoroughly inspected by you. The general rule is that you must examine an individual’s documentation establishing identity and employment eligibility and complete the employer section of the form confirming that you have reviewed and verified the information provided to you within three days of the hire. If any document does not reasonably appear on its face to be genuine or to relate to the person presenting them, you must not accept the document. If the employee does not provide necessary and accurate documentation that he/she can legally work in the U.S., that employee must not be retained in the work force.
8. Help Wanted Advertisements, Notices.
The Age Discrimination in Employment Act (“ADEA”) makes it unlawful for employers to use job advertisements that discriminate against persons age 40 or older. Maryland does not set a minimum age such as 40 as a threshold age for discrimination, but rather prohibits discrimination on the basis of any age. Raise your consciousness concerning what might constitute age discrimination in advertising. Relatively innocent phrases such as “recent college graduates,” “recent high school graduates,” and “college students,” are words and phrases that are viewed as deterrents to the employment of older individuals and would likely be found to violate the ADEA.
9. Job References.
Have a uniform policy for checking applicant references. Uniform application of this policy is an important element in avoiding a charge of negligent hiring. Maryland has adopted a job reference statute that gives limited immunity to employers who have the consent of the applicant to make reference checks and who limit questions to job related inquiries.
10. Workers’ Compensation.
An employer may not ask an applicant about his/her job-related injuries or workers’ compensation history in the application or during the pre-offer stage. Once a conditional offer of employment is given to an individual applicant, you may inquire about the person’s workers’ compensation history in a medical inquiry or examination if the inquiry or examination is required of all applicants in the same job category.
The failure to comply with hiring related laws can expose your practice to liability that could be financially costly and that could destroy a sound reputation. This article intends to only touch on the complex and multi-faceted topic of hiring law. For expert advice, contact your attorney.