THE TRICKY TRUTH ABOUT HIRING AND FIRING

COMPLIANCE

Part 1: Hiring

SEILER & ASSOCIATES, PLLC7900 Highway 7, Suite 350

Minneapolis, Minnesota 55426952.358.7400/info@seilerlaw.com

© Copyright 2010 Seiler & Associates, PLLCThese materials are for educational purposes only and do not constitute legal advice.

Participants and readers should seek the advice of counsel of their own choosing before taking or foregoing any employment related action.

HIRING: It’s Not Just a Handshake

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LEGAL PERSPECTIVE—PROTECTED CLASSES Blue Eyed Devils Long Haired Hippies Halitosis Harry Four Eyed Geeks Capped Connie Tattooed Angel Pierced Paul Stinky Simon Packer Backer

LEGAL PERSPECTIVE—PROTECTED CLASSES

Race Color Creed National Origin Religion Age (≥40 Fed - 18 MN) Sex (Including Pregnancy) Sexual Orientation (MN) Marital Status Disability Status with regard to public assistance Membership or activity in a local commission Any other legally protected factor

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RECRUITING AND ADVERTISING Trade Magazines; Newspapers; Internet

vs. Word of Mouth/Referrals/Grapevine

People Look The Same: May Give Rise To Discrimination Claims Inner City Company Uses Suburban Hiring Firm

Company Does Not Reflect Urban Community Suburban Company Hires From Community

Company Does Not Attempt To Diversify

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NEWSPAPER ADVERTISEMENT

EEO Emplyr seeks SWF, 35-39 yo, abled, fit, sw metro resid, blue eyed, no tats, no piercings, typ 50 wpm, able to tk a jk, 10 key, lng hrs, low pay, ms office, no kids, no OT, no weirdos, no Packer backers.

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JOB DESCRIPTIONS Forms

On Line; Make your own Content

Functions and Skill Sets Essential vs. Non-Essential Duties (Actual Tasks) Use Current/Exiting Employees

Reasonable Accommodation Statement 15 Or More Employees

Offer Letters Performance Reviews/Discipline

Personnel Records—Notice of Employee Rights Must Provide Applicants with Notice of

Employee Rights to Personnel Records at time of Application 20+ Employees

Minn. Stat. §181.9631

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THE HIRING TEAM Create A Plan

Who Will Interview, When and Why Supervisors vs. HR

How many rounds of interviews to conduct Each Person Has An Articulable Task

What will each person ask Each Person Is Trained

The Legal Dos and Don’ts

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THE INTERVIEWTIPS

Elicit Useful Information Open Ended Questions

Use the Applicant’s Resume Ask for Examples from Applicant’s Past

Relate to Relationship with Bosses Explain Essential Job Functions and Use Job

Descriptions

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REFERENCE CHECKS

Why won’t anyone give us information? Use Releases, Authorizations and Waivers Use a Form for Oral References No Discriminatory Questions Minn. Stat. §181.967

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BACKGROUND CHECKS Investigations

Criminal: In-House State: BCA Federal: Fed Courts Convictions vs. Arrests

Education: Consistency among Applicant Groups Work History Driver’s License: BFOQ Credit Report In House: Generally OK Farmed Out: FCRA

Credit Report from a Consumer Reporting Agency (Paid to investigate for 3rd party clients) Limitations Written Disclosure/Authorization/Release Drug Testing

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DRUG TESTING State by State Regulation Collective Bargaining (Applicants vs. Employees) DATWA (MN Drug and Alcohol Testing in the Workplace Act)

General Rules: Must Have A Written Drug and Alcohol Testing Policy, Including At Least The Following:

Employees and Job Applicants Subject to Testing Circumstances Under Which Testing Will Occur The Employee’s/Applicant’s Right to Refuse and Consequences of a Refusal Chain of Custody Policy Discipline That May Be Taken For a Confirmatory Test Verifying a Positive Result on an Initial

Screening Test Employee’s Right to Explain the Result of a Confirmatory Test and Pay for Another Confirmatory Test Any Available Legal Procedures

Must Have Employees Sign Acknowledgment that He/She has Seen the Policy All Effected Employees And Post-Offer Applicants Must Get Notice of Written Policy and Policy

Must Be Conspicuously Posted Must Use An Authorized Testing Laboratory--Employer should never self test

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OFFER LETTERS Pay and Benefits Contingencies

Non-Compete Agreements Background Checks Policy and Procedure Handbook Offensive Behavior Policy I-9’s Drug Testing Results

At Will Statement Job Descriptions

Attach to Offer

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POST-ACCEPTANCE DUTIES Open Files Notice of Personnel Records Rights

20+ Employees Notice of Employee Rights at time of Application

Proof of Eligibility To Work In USA I-9s (Newer Form) Passport; Drivers License + Birth Certificate Shhhhhhhh!!

Non-Competes/Employment Agreements Handbook Accounting – Insurance – Benefit Forms

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POST-ACCEPTANCE DUTIES

Non-Competes/Employment Agreements Additional Consideration if Signed After Work

Begins Non-Compete Non-Solicitation Workplace Protection 1 Year “Rule”? Blue Pencil Laws