From Hiring to Firing: Practical Tips to Avoid Employment Claims Steven Gutierrez and Mark Wiletsky Holland & Hart, LLP

Agenda Minimizing Your Risk of Employment Claims:  Hiring Pitfalls  (Mis)managing workforce issues  Termination Trip-Ups

HIRING PITFALLS

Minimize Screening Exposure  Consistent screening  Complete job application – look for gaps/red flags  Interview questions: job related & open-ended; avoid prohibited topics (protected characteristics, medical conditions, etc.)  No blanket “No Hire” policy  Conduct individualized assessment, but keep process objective

Avoid Common Hiring Mistakes  Check references  Plan the process: use single set of interview questions for position; rank candidates using same criteria  Focus on skills, experience, and qualifications needed for particular job  Review background check materials

Background Checks – Criminal Histories/Credit Checks  Arrests vs. Convictions (new EEOC guidance)  Credit Checks  CA, CO, CT, IL, MD, OR, VT and WA

Social Media – Recruiting and Screening Employer use of social media in hiring context:  recruiting candidates  screening candidates Social media concerns:  Posted information may not be valid  Protected class status or activities  EEOC: social media info akin to a “watercooler” conversation  Privacy rights  Fair Credit Reporting Act applies when third party involved  Proving what you viewed  State laws restricting access

Employee or Contractor Independent Contractor vs. Employee –Wage & Hour Division targeting independent contractor classification  MOUs with 14 states –State Independent Contractor Laws (e.g., CO) –Expect reintroduction of federal Employee Misclassification Prevention Act

Employee Handbooks Review and Update:  Clear disclaimer/at-will  EEO policies  FMLA – recent changes  Breaks for breastfeeding  Social media policy  “Concerted activity” disclaimer  Retain acknowledgement forms

Employee Contracts  Noncompete, nondisclosure, and/or nonsolicitation  Invention ownership  Offer letters

MINIMIZING RISKS DURING EMPLOYMENT

FLSA Lawsuits  7,764 FLSA cases were filed in 2013, up 10 percent from 2012 which saw 7,064 cases filed  Record High

Wage & Hour Pitfalls  Interns  Working from home  On-call and waiting time  Use of mobile devices  Salaried - not the same as exempt  Docking pay

Minimize Exposure – FMLA Issues FMLA  Final FMLA Rule – eff. 3/8/13 – expands leave for military families and airline flight crews  Leave to care for an adult child – new guidance

Minimize Exposure – Disabilities and Accommodations  ADAAA Final Regs Expanded Disabilities –Additional “major life activities” included –Some impairments presumed a disability –No mitigating measures  Reasonable Accommodation –Requires an interactive process –May include a job transfer  Don’t forget about workers’ comp.

Minimize Exposure – Documenting Performance Document! Document! Document!  Job descriptions  Performance issues  Be honest when evaluating

Minimize Exposure – Documenting Performance –Identify the problem –Be specific/give examples –Include history of problem –Include employee’s response/justification –Signature/acknowledgment –We expect immediate and sustained improvement. If there are any further issues, you will be subject to further discipline, up to and including termination of employment.

Workplace Investigations- Avoiding Pitfalls  Not conducting an investigation at all  Diving into an investigation without a plan  Conducting a biased or lazy investigation  Delaying the investigation  Overpromising on confidentialit y

Workplace Investigations – Continued  Failing to adequately document the investigation  Failing to deter retaliation  Reaching a conclusion before talking to the “accused”  Failing to reach a conclusion

Drug and Alcohol Tests  CO Amendment 64 –Task Force recommending that employers be allowed to terminate for any marijuana use, even if used off-duty – recent court cases –Update drug-free workplace and drug testing policies  Random Alcohol Testing Doesn’t Violate ADA When Safety Concerns Justify Tests

MINIMIZING TERMINATION RISKS

Terminations – Plan Ahead  Follow your policies and termination procedures  Don’t make knee jerk decisions  Treat similar situations similarly  Consider potential risk/liability  Document facts and reasons  Get your ducks in a row!

Termination Checklist RISK ASSESSMENT Prior to termination, consider whether the employee: 1.Has a written employment contract? 2.Is covered by a collective bargaining agreement? 3.Has received verbal/written assurances that alter an at-will status? 4.Is a member of a protected group (under Title VII of the Civil Rights Act or other federal, state or local nondiscrimination law)?

Termination Checklist – Continued 5.Has disclosed a disability or medical condition? 6.Has requested leave or recently returned from leave under the FMLA, state disability leave law or workers’ compensation? 7.Has requested an accommodation under the ADA? 8.Is/was a member of the military? 9.Is pregnant?

Termination Checklist – Continued 10. Has complained of discrimination, harassment, unfair treatment or unsafe working conditions? 11.Has participated in an investigation or lawsuit involving themselves or another employee? 12.Has been given favorable/positive employee evaluations? 13. Was treated differently than other employees? 14. Will be surprised by the termination? Any “YES” responses should be reviewed and assessed before proceeding with a decision to terminate the employee.

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