HR Best Practices:A guide to hiring, firing and

everything in between

Liz Speidellspeidel@hsblawfirm.com

HIRING PRACTICES

Application Process• Applicant tracking is crucial.• How do you define an “applicant”?• Do you accept unsolicited applications?• How long do you keep applications?• When a position becomes available, do you review previously

received applications?• Are applicants only/predominantly members of one sex or

race?• Are minorities and females who apply for jobs

disproportionately negatively rejected?

Recruiting

• Are job opportunities made equally available to individuals without regard to race or sex?

• If job fairs are used to recruit applicants, are they equally accessible to all individuals without regard to race, sex, color, national origin, religion, age or disability?

Recruiting• Do the newspapers or

other written periodicals used appeal to minorities and women or are such groups denied access to information about job opportunities?

• If schools are used to recruit applicants, do the schools have a representative student body in terms of minorities and women?

Recruiting• Do you use State Employment Agencies as recruitment

sources for entry level positions?• If Employment Agencies are used, have you reviewed the

contracts to ensure they include provisions that they conduct their activities in compliance with the ADA and other equal employment laws?

• And have you provided them with a copy of your policy on Equal Employment Opportunities?

Pre-Employment• Have you adopted a standard application for ALL

employees?• Have you required all applicants to complete the

standard application?

Hiring

• Is the application and hiring process centralized?• If not, having managers been trained on proper

procedures and policies for interviewing and hiring employees?

Hiring

• Have you conducted a reference check?• Criminal background check?• Drug testing?• Pre-employment physical?• Applied consistently for all employees?

Hiring

• Has each employee received an employee handbook?

• Has each employee signed an employee certification acknowledging receipt of an employee handbook and knowledge of At-Will Employment Disclaimer?

• Has each employee signed a Confidentiality Agreement?

Hiring• Have you properly classified the employee as exempt or

non-exempt under the FLSA?• Have you properly classified the worker as an employee or

an independent contractor?

• Do you have completed I-9s on file for each employee employed within 72 hrs of employment? Have you complied with SC E-Verify requirements?

• Do you have completed W-4s on file?

(Reasons for Not) Hiring

• Have you documented the reasons for not hiring an applicant?

• Have you reviewed those reasons to see if any of them are applied to minorities or women more often than to non-minorities or men (adverse impact analysis)?

• Note: the EEOC and OFCCP strongly encourage the use of internal audits to measure systemic discrimination.

• Considered a “best practice”.

Job Descriptions

• Are your job descriptions outdated and inaccurate?

• Do they accurately describe the essential functions of the jobs as they are being performed today?

• Do they specify the minimum job-related qualifications for the job (educational requirements; licenses; experience)?

Interviews

• Is your interview process standardized and job-related?– Standard evaluation form for interview notes– Notes should not contain inappropriate comments,

subjective, non-job related comments.– Standard evaluation form should be filled out, signed

and submitted by the interviewer.

Interviews• Have you provided training and guidance to individuals

conducting interviews as to the types of questions which can and cannot be asked?

• Do you provide interviewers with copies of the relevant job description (s), job notices and job postings?

• Is your interview site readily accessible?

Pre-Employment Medical Examinations

• Why? Drug Testing? Fitness for Duty?• All similarly situated employees subject to the same

examination?• Have you extended an offer of employment and specifically

stated that such offer is contingent upon the results of the examination?

• Is the examiner provided with information about the essential job functions to be performed (written description or videotape description?

EMPLOYMENT

Employment Policies• At-Will Disclaimer

– CONSPICUOUS? On First Page? Signed by Employee?

• Equal Employment Opportunity?

• Drug Testing Policies & Procedures?

• Computer and Telephone Usage Policies?

• Privacy Policy

• Access to Personnel Records?

• Time-Off?• Leaves of Absence?• FMLA • Discipline and

Termination?• Wage Payment Form?• FLSA Overtime Policy?

Employment Policies• Non-Discrimination/Non-Harassment Policy?

– Define, including sexual, in understandable terms and include internal complaint procedure

– No retaliation for complaints– Sanctions for harassing/discriminatory conduct, up to &

including termination of offending employees– Designate individual to conduct investigations & monitor

complaints of harassment– Provide training– Post policy in common areas.

Compensation and Benefits

• Review employee wages• Compensation Disparities that are

gender/race/etc. based?• Bonus Compensation – Written

Policy • Workers’ Compensation Benefits• Short Term Disability• Long Term Disability• Life Insurance

Performance Evaluations

• Conduct annually, in a timely manner• Use standardized forms to create consistency,

avoid subjective, inappropriate comments• Develop factors used to evaluate employees that

are objective and job-related

Performance Evaluations• Review performance evaluations to ensure they’re:

– Completed fully;– Supported by documentation;– Based on job-related factors to evaluate the employee;– Include positive & negative assessments;– Contain no inappropriate comments;– Accurately reflect essential functions of job position as

necessary; and– Followed up on.

Discipline

• Have you adopted policies and practices with the following key elements in mind:– Consistency;– Uniformity;– Fairness; and– Documentation?

Discipline• Have you provided management training on how

to discipline employees in accordance with company policy?

• Do personnel files document all employment issues relating to performance, attendance, tardiness?

• Have you documented all disciplinary actions taken? Written warnings/reprimands should be placed in the employee’s personnel file.

Discipline

• Are disciplinary actions consistent with the employee’s personnel record?

• Have you designated an individual to ensure that all employees are treated fairly and equally and that like offenses receive like punishment?

• Are employees given the opportunity to tell their side of the story before disciplinary action is taken?

Discipline

• Are employees given a reasonable opportunity to correct deficiencies, if appropriate?

• Have you consistently enforced final warnings?• Do you follow up with employees following

disciplinary action to provide necessary training and counseling?

EMPLOYEE SEPARATIONS

Termination for Cause

• Have you created a procedure to conduct a thorough investigation before terminating an employee?

• If a termination decision is based on a witness statement, have you documented the witness statement in writing?

• Does the employee’s work record and personnel file support the decision to terminate?

Termination for Cause

• Is the decision to terminate consistent with employer personnel policies?

• Have you reviewed terminations over the previous 12 months to ensure that protected classes of employees are not being terminated in numbers disproportionate to their representation in the workforce?

Involuntary Reductions in Force

• Have you reserved the right, pursuant to written policies disseminated to employees, to terminate employees for no cause?

• Have you drafted written guidelines for managers and supervisors detailing the layoff process and setting forth the criteria to be used?

Employment Laws to Watch Out For

• Fair Labor Standards Act• Occupational Health and Safety Act• National Labor Relations Act• COBRA• HIPAA• ERISA• Americans With Disabilities Act• Title VII• Equal Pay Act• Pregnancy Discrimination Act• FMLA• Immigrations Reform and Control Act• Executive Order 11246 and Rehabilitation Act of 1973• WARN• Workers Compensation laws• SC Human Affairs Laws• Fair Credit Reporting Act• Employee Polygraph Protection Act• Drug Free Workplace Act

RECORD KEEPING REQUIREMENTS

Personnel Files

• What is maintained in each employee’s personnel file?– Are I-9 forms kept separately?– Are medical records maintained separately

& confidentially?• Have you adopted document retention

requirements for personnel files? Are they being enforced?

Personnel Files• How are you treating electronic information

maintained on each individual?– Forms– Email correspondence– Applications received electronically

• What is the status upon employee termination?– Reviewed– Archived– How is it stored?

Personnel Files

• Who has access to an employee’s personnel file?– And subject to what, if any restrictions?

• What is your policy for responding to subpoenas?

DOCUMENT RETENTION(How long do I have to keep this

stuff?)

EEO-1 Filings• 1 Year (Recommended 2 Years)

– Employment Applications– Job Notices & Advertisements– Job Postings– Lay-off Notices– Employee Aptitude Tests– Physical Examination Results– Employee requests for Disability-Related

Accommodations

EEO-1 Filings

• 3 Years from Date of Employment Action– Payroll Records

• Name• Address• Birth Date• Occupation• Pay Rate• Weekly Compensation Rate

EEO-1 Filings

• 5 Years– Performance

Evaluations– Disciplinary Notices– Warnings

EEO-1 Filings• Permanent Retention (Kept

in Personnel File)– Employee

Acknowledgement Forms - including Receipt of At-Will Disclaimer, Receipt of Sexual Harassment Policy & Training.

• Duration of the Plan– Summary Plan Descriptions– Plan Documents

Equal Pay Act & Fair Labor Standards Act

• 3 Years– Payroll Records– Collective Bargaining Agreements– Employment Agreements– Certificates and Notices of Wage and Hour

Administrator

Equal Pay Act & Fair Labor Standards Act

• 2 Years– Employment and earnings records, Timesheets,

Schedules, Wage Amendments; and– All records that explain the basis for paying different

wage rates to employees of opposite sexes in the same position/establishment (wage rates, job evaluations, security & merit systems).

Equal Pay Act & Fair Labor Standards Act

• Until Termination of Employment– Certificates of age (i.e. voluntary request for information

re: age)• 1 Year from Date of Termination

– Records relating to employee’s involuntary termination

Equal Pay Act & Fair Labor Standards Act

• Duration of Training Program– Job Descriptions– Training Program Guides– Interview Records

Immigration Reform & Control Act

• 3 Years from Date of Hire or 1 Year after Termination (whichever is later)– I-9 Forms & supporting documentation

• Copy of driver’s licenses, passports, etc.

OSHA

• 5 Years– Annual log of all recordable occupational injuries and

illnesses;– Injury & Illness Incident Report for each occupational

Injury or Illness;– Annual Summary of Occupational Injuries or Illnesses.

OSHA• 30 Years

– Records documenting employee exposure to hazardous or harmful substances and any analyses using or relying on employee medical or exposure records

• Duration of Employment + 30 Years– Employee Medical Records (excluding health insurance

claim records and first-aid records for one-time treatment of minor injuries), UNLESS employee has worked less than one year.

SC Worker’s Compensation

• 2 Years– Report of Employee work-related injury

Title VII of the Civil Rights Act and

Americans with Disabilities Act• 1 Year from Date of Commencement of Personnel

Action– All records relating to Hiring & Firing (applications,

resumes, promotions, demotions, transfer, layoff, discharge, pay rates)

Title VII of the Civil Rights Act and

Americans with Disabilities Act• 2 Years from Date of Making the Record in

Personnel Action– Records relating to EEOC Charge of Discrimination

(records relating to individual (s) filing Charge)

Uniform Guidelines on Employee Selection

Procedures• 1 Year: Records and information showing:

– Number of persons hired, promoted, terminated for each job, by sex, and where appropriate by race and national origin; and

– Number of applicants for hire and promotion by sex, and where appropriate, by race and national origin; AND

– Selection procedures utilized.

Uniform Guidelines on Employee Selection Procedures

• 1 Year from Date Record Made or Action Taken:– Any Personnel or Employment Record made or kept by

employer (application forms; records re: hiring, promotion, demotion, transfer, layoff or termination; rates of pay; selection for training or apprenticeship).

Uniform Guidelines on Employee Selection

Procedures• For 2 Years from Date Application Received or 1

Year from Date of Report:– All records pertaining to apprenticeship programs,

including chronological list of names, addresses of all applicants, dates of applicants, sex and minority group identification and any other record made solely for completing EEO-2 or similar reports.

Uniform Guidelines on Employee Selection

Procedures• Until Final Disposition of Charge or Action:

– Any Personnel Records relevant to EEOC Charges• Employers with 100+ employees must maintain a

copy of their EE0-1 Employer Information Report. A copy of the most recent report filed must always be retained by such employer.

Executive Order 11246

• Maintain for 2 years from date record was made or personnel action occurred, whichever is later:– Written affirmation action programs and supporting

documentation, including required workforce analysis and utilization evaluation.

The Age Discrimination in Employment Act

• 3 years: Payroll or other records containing each employee’s name, address, date of birth, occupation, rate of pay and compensation earned per week

The Age Discrimination in Employment Act

• 1 year from date of personnel action:– Personnel/employment records relating to job applications,

resumes, replies to job advertisements (including temporary)– Promotions, demotions, transfer, selection for training, lay-off,

recall or discharge– Job orders submitted to employment agencies or unions– Test papers in connection with employer-administered aptitude

tests– Physical exam results considered in connection with personnel

actions– Job advertisements or notices

The Age Discrimination in Employment Act

• Until final disposition of action: all personnel records, including above, relevant to enforcement actions brought against the employer.

The Family and Medical Leave Act

• 3 Years (50+ employees)– Based on similar record requirements as FLSA– In addition, dates and hours of FMLA leave taken– Copies of employer notices– Documents describing employee leave benefits &

policies– Premium payments of employee benefits– Records of disputes with employees over FMLA benefits