TOP 10 HIRING AND FIRING MISTAKES

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TOP 10 HIRING AND FIRING MISTAKES
Tami A. Tanoue General Counsel/Claims Manager CI
RSA CML Seminar Employment Issues For Municipa
lities
December 5, 2008
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• HIRING MISTAKES

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Not Having an Up-to-Date Job Description in Place

• Before you ever start thinking about hiring, make
  sure that there is an up-to-date job description
  for the position
  
• Essential functions of the position and secondary
  duties, minimum qualifications, and experience
  requirements, exempt or non-exempt status,
  attendance requirements, lines of supervision
• Helps you target your recruitment efforts, frame
  the appropriate selection techniques, gives you a
  fair and consistent basis for screening

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Not Using a Standard Application Form

• Its important to use a standard application form
  for EVERY position
  
• Even those for which a resume would seem
  appropriate welcome the resume in addition to
  the form, but require the form for every
  position
• Will enable you to get a consistent set of
  information from each candidate
  
• Will help you identify any gaps in employment
  for which a follow-up may be warranted
  
• Will help you pin down exact durations of
  previous employment
  
• Will help you identify previous supervisors,
  etc., for background and reference-checking
  purposes
  
• Make sure the application form is up-to-date in
  terms of appropriate questions
  
• Periodic legal review to delete dont go there
  questions

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Not Using a Standard Application Form

• Make sure that the application form includes
  language stating that incomplete, inaccurate, or
  false information on the application will be
  grounds for disqualifying the application
• Not just falsification
• Make sure the application form is accompanied by
  appropriate release language to permit you to do
  background checking (but keep it separate from
  the main application more about this later)
• No need to reinvent the wheel many models
  available
  
• Might consider two application forms one for
  law enforcement, and one for others
  
• Law enforcement positions typically call for a
  deeper level of information and investigation
  

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Failing to Follow Your Own Procedures

• Youre City (Town) Hall you get to write the
  rules!
  
• But with that power comes the responsibility to
  follow your own rules
  
• Follow your hiring procedures to the letter
• If theyre unworkable, re-write them for next
  time, but dont disregard them for this time

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Not Preparing for the Interview

• Prepare in advance a script outlining each
  question that will be asked
  
• Make sure all questions are job-related and
  calculated to probe competencies,
  
• Avoid the dont go there subjects (more about
  this later)
  
• Plan to follow the standard questions, but
  understand that interviews can take detours
  
• A script will help ensure that you cover the same
  ground for each candidate and give you a better
  basis for comparing candidates
  
• Can help you avoid the dont go there subjects
• If there will be a group of interviewers,
  coordinate whos going to ask what
  
• Make sure you mostly LISTEN during the interview!
  
  
• If the interview consists mostly of you talking,
  what will you learn, other than whether the
  candidate is a good listener?

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Going Into a Dont Go There Area

• Understand clearly the dont go there!
  subjects
  
• Even if the candidate is the one opening the
  door, dont walk through it!
  
• Dont go there subjects include
• Family issues -- marital status, spouses
  employment, children, child care arrangements,
  pregnancy plans
  
• Disability or medical conditions
• Religion, gender, age, race, color, national
  origin
  

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Going Into a Dont Go There Area

• Focus on job-related issues, such as
• Can you work overtime when needed?
• Do you have reliable transportation to get to the
  job?
  
• Can you work flexible hours?
• Can you meet the attendance requirements of the
  position?
  
• Are you 18 or over and do you have the right to
  work in this country (through citizenship or
  status as a resident alien)

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Going Into a Dont Go There Area

• Disability-related questions are another area
  that must be navigated carefully
  
• Focus on essential functions and the applicants
  ability to perform them, with or without
  reasonable accommodations
  
• Understand that questions about medical
  conditions are not permitted until after a
  conditional offer of employment and then must
  be job-related and consistent with business
  necessity
• Confidentiality requirements also apply to
  medical information

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Relying Only on the Interview

• An interview is a key piece of the hiring process
  but not the only piece
  
• Background checks are another critical piece
• Application verification, reference-checking,
  licenses, certifications, degrees, criminal
  records checks, MVR checks may be pertinent,
  depending on the position
• Make sure the types and levels of background
  checking match up with the type of position for
  which the check is being performed
  
• Make sure your use of background checks is not
  selective!
  
• Establish in advance what level of background
  checking will be performed for each position, and
  adhere to your established policy

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Relying Only on the Interview

• Outsource -- use a third party background
  checking company, if possible
  
• DO NOT use your own police department to conduct
  background checks
  
• Not a proper use of CCIC
• Make sure you keep the reference checking form
  info separate from the application form
  
• You dont want decision-makers to have date of
  birth info, for instance
  
• You want to make sure SSNs and other sensitive
  information arent floating around unguarded
  

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Not Prepping Correctly for Background Checks

• Obtain the proper release forms
• Have them prepared in advance, and provide them
  with your application form
  
• No need to reinvent the wheel here, either
• If you use a third party background checking
  firm, they can provide you with the necessary
  forms

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Not Prepping Correctly for Background Checks

• Be aware that there are federal and state
  enactments pertinent to denial of employment
  based on arrests/convictions
  
• The EEOC states, with respect to arrest and
  conviction records
  
• Using arrest or conviction records as an
  absolute bar to employment disproportionately
  excludes certain racial groups. Therefore, such
  records should not be used in this manner unless
  there is a business need for their use. Whether
  there is a business need to exclude persons with
  conviction records from particular jobs depends
  on the nature of the job, the nature and
  seriousness of the offense, and the length of
  time since the conviction and/or incarceration.
• Unlike a conviction, an arrest is not reliable
  evidence that an applicant has committed a crime.
  Thus, an exclusion based on an arrest record is
  only justified if it appears not only that the
  conduct is job-related and relatively recent but
  also that the applicant or employee actually
  engaged in the conduct for which (s)he was
  arrested.
• State statute on employment opportunities CRS
  24-5-101 public employment not to be denied
  solely based on conviction of felony or other
  offense involving moral turpitude

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Failing to Cast a Wide Net

• Tap into all of the appropriate candidate pools
  consider use of newspapers, postings, internet,
  state job resources, CML job finder, etc.
  
• Hiring based on word of mouth or who you know
  can get you into trouble from a discrimination
  standpoint, and limit the pool of qualified
  candidates
• A buddy system for hiring is a mistake for
  other reasons, too
  
• A friendship or other personal relationship is no
  indicator of how a person will perform in the
  employment setting
  
• Theres nothing uglier than having to fire a
  buddy, relative, or neighbor!
  

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Misclassifying an Employee Position as an
Independent Contractor

• There may be reasons of convenience that may
  prompt you or the individual to seek
  classification as an independent contractor
  
• But its critical to analyze the position to make
  certain that such a classification is legitimate
  in light of the nature of the work
  
• Misclassification will have major adverse
  consequences from liability, workers comp,
  unemployment comp, and tax standpoint!
  

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Offer Letter Gaffes

• Failing to put offer in writing
• Start date, job title, reporting relationship,
  hours, benefits, any contingencies that make the
  offer a conditional one, compensation (use hourly
  or monthly figure rather than annual one)
• Unwise wording in offer letter
• Avoid any express or implied assurances of job
  security
  
• This position will last five years oops! Did
  you mean that as a promise?
  

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• FIRING MISTAKES

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Failing to Follow Your Own Procedures

• Remember youre City (Town) Hall! You get to
  write the rules, but youll be held to them
  
• Make certain you follow the personnel regulations
  to the letter
  
• If the process is unworkable, confusing, or
  cumbersome, change it for next time!
  
• In case of any doubt about the procedure, get
  legal advice before starting down the path, and
  resolve doubts in the employees favor

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Not Doing the Hard Work to Ensure the Termination
is No Surprise

• If youve handled the working relationship with
  this employee appropriately, the termination
  should not come as a surprise to the employee
  
• Termination needs to be the logical final chapter
  in the saga
  
• Is this a short story, or War and Peace? How long
  has the employee been there? How much work have
  you done to try to save the working relationship?
  
• Are you the good guy or the villain in this
  story? Does the documentation reflect that you
  are the good guy whos been unquestionably
  fair, reasonable, and patient?
• If you look at the history of your working
  relationship, the prior actions taken, and the
  documentation kept, and you cant say, yes,
  termination is the next logical chapter, then
  maybe youve got more work to do
• If you think that the termination will come as a
  shock to the employee, then ask yourself whether
  theres more work to do

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Not Dealing With Problem Employees in a Timely
Fashion

• Problem employees usually identify themselves
  early
  
• Heed the warning signs, take timely and
  appropriate corrective action, up or out
  
• If you have a probationary period, take it
  seriously
  
• Worst case scenario when you procrastinate Just
  before you decide to take action, the employee
  engages in some protected action, with resulting
  complications (more about retaliation later)
• But recognize that the time frame for a final
  solution needs to commensurate with the duration
  for which the problem has been allowed to
  continue
• If the employees been allowed to stay as an
  underperformer or problem employee for years or
  decades, dont assume that the up or out
  process can be completed in days or weeks!

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No Good Deed Goes Unpunished, Part 1
Sugar-Coating

• Don't use excuses when disciplining/terminating
  the employee confront the real reason be honest
  and clear
  
• Dont try to sugar-coat - e.g., using layoff
  when you mean fired
  
• Its cruel to be kind this way
• And the real reasons will always come out in
  the end
  
• If youve practiced good supervisory techniques,
  a termination should be no surprise to anyone,
  especially the employee
  

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No Good Deed Goes Unpunished, Part 2 Evaluation
Inflation

• Be accurate and honest in your evaluations they
  are essential protection for you
  
• Dont be result-oriented, though forthrightly
  address each factor being evaluated
  
• Are these legitimate concerns?
• I didnt want a negative evaluation to crush
  his/her morale!
  
• I wanted the evaluation to provide positive
  motivation!
  
• I felt sorry for him/her because an honest
  evaluation would deny a pay increase!

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No Good Deed Goes Unpunished, Part 2 Evaluation
Inflation

• Do not let an inaccurate evaluation create
  dissonance between the documentation and the
  reality of a situation! Youre hurting everyone
  
• The employee doesnt get a fair picture of whats
  going on and what may happen if he/she doesnt
  shape up!
  
• Youre going to look very, very bad to a jury
  and your supervisor is not going to be impressed
  by your supervisory skills!!
  
• The organization isnt given the opportunity to
  manage a problem properly, and may end up with a
  huge management and/or litigation problem!!!
  

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Smells Like Retaliation

• Is there an underlying issue that would allow the
  employee to claim retaliation?
  
• Whistleblower?
• Exercise of protected right, like making
  harassment complaint?
  
• Retaliation is one of the more common and
  troublesome claims
  
• Everyone is in this protected class
• Timing alone can support a retaliation claim
• Soul-search to make sure theres not even a whiff
  of retaliation in what youre about to do, and
  remain aware of timing issues (but dont let them
  paralyze you from doing the right thing)

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Forgetting to Soul-Search

• If you wind up in litigation, youre going to be
  asked lots of tough questions.
  
• Youll be asked to defend the consistency,
  appropriateness, and fairness of the termination
  so make sure you feel youre on solid ground
  
• Some questions to ask yourself before undertaking
  a termination.
  
• Are you treating this employee unfairly or
  differently than other employees?
  
• Do you consistently apply the same standards of
  behavior to other employees?
  
• Would other employees behaving the same way
  receive the same disciplinary action?
  
• Where would you place this employee among others
  in terms of violation of this rule or failure to
  meet this expectation?

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Forgetting to Soul-Search

• Assess what your real reasons for concern are,
  and whether your reasons are legal
  
• Is the problem really work-related? Is it a
  discriminatory or illegal reason? Something
  personal?
  
• Are you using a rule violation or job expectation
  as an "excuse" for some other concern that you
  may have?
  
• Could the issues between you and the employee
  that be perceived as discrimination even if they
  are not?
  
• A new or inexperienced supervisor may have
  difficulties supervising a more experienced,
  long-time employee
  
• Perception from employees standpoint age
  discrimination?
  
• Get a reality check to make sure that your own
  actions, and your own discomfort, arent being
  perceived by the employee as age discrimination

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Forgetting to Soul-Search

• If youre disciplining, is your reason for
  discipline supported by adequate documentation?
  
• Is the documentation fair, or heavy-handed?
• Could it look like you have targeted a person
  that you want to get rid of?
  
• Read with a jurors eye before issuing!

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Forgetting to Soul-Search

• Does employee have a reasonable excuse for the
  behavior?
  
• Are there other mitigating circumstances?
• Is there a lack of training?
• Employee's overall record of performance and/or
  discipline?
  
• Is the supervisor part of the problem?
• A difficult question to ask yourself but its
  critical!
  
• Any prior warnings or disciplinary actions have
  been taken concerning this problem?
  
• Was problem allowed to grow and fester up until
  now?
  
• Did you inherit the problem?
• Under either of these circumstances, it may be
  unfair to place the entire burden of a festering
  problem on the employee
  
• Take into account prior supervisory deficiencies
  before taking action
  

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Forgetting to Soul-Search

• Is the consequence (especially termination)
  reasonably related to the seriousness of the
  problem?
  
• Consistent with similar prior actions taken
  against other employees in the past?
  
• Is this a first offense?
• Could you be coming down a bit too hard?
• A sure way to lose credibility as a supervisor is
  to have your action reversed by a higher authority

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Failing to be Courteous and Humane in Doing the
Deed

• Choose a quiet, private location and time
  minimize possibility of onlookers
  
• Dont do the police escort or other
  unnecessarily humiliating things at termination
  
• Choose a time other than Friday afternoon
• Have a witness to the termination meeting, but
  choose a neutral person
  
• Be cognizant of security issues, but be low-key
  about them
  
• If you did the firing, have a neutral person
  stand by to help
  
• Allow the employee to remove personal belongings
  after hours
  
• Have a checklist of items to be returned to the
  municipality

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Forgetting to Plan for Security Issues

• Passwords to computer, phone, etc.?
• Dont allow employee the chance to sabotage or
  erase crucial data have IT on standby to
  disable access promptly
  
• Keys or passcode access to building and other
  secure areas?
  
• Dont assume that do not copy on a key will
  protect you
  
• Changing locks is cheap insurance
• Programmable locks with passcode or passkey may
  be good investment
  
• Careful planning for IT security issues
  especially critical in termination of IT
  professionals!

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Not Keeping Elected Officials Appropriately in
the Loop

• Make sure the elected officials are made aware of
  the action, especially if its high-profile or
  controversial
  
• Will help keep them from being caught off-guard
  by questions from press, public
  
• If you had to sign a confidentiality agreement in
  connection with a negotiated resignation, a
  heads-up to elected officials is particularly
  critical!
• Agree on something that can be said without
  compromising employees privacy
  
• Chief ___ is no longer with the City. Questions
  should be referred to ___, our Public Information
  Officer.
  
• This is a personnel matter, so I am not
  permitted to discuss the details.

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Not Keeping Elected Officials Appropriately in
the Loop

• But elected officials can be too far in the loop
• HR issues involving individual employees need to
  be handled in privacy
  
• City Councils and Boards of Trustees must do
  their work in public
  
• This irreconcilable conflict comes into play when
  municipalities have personnel procedures that
  require Council/Board action or ratification of
  terminations
• If you can, delegate as much as possible HR
  issues involving individual employees to your
  City/Town administration

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Talking Freely to the Press About the Termination

• Laws concerning public access to information
  recognize that personnel matters are and should
  be kept confidential
  
• That doesnt mean the press wont ask questions
  thats their job!
  
• But if you talk freely, you are giving them an
  unexpected gift, perhaps at your own expense.
  
• And, as mentioned previously, if youve agreed to
  confidentiality, talking could create liability
  for yourself and/or the municipality!!

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CONCLUSION AND SUMMARY

• Between hiring and firing, by far the greater
  liability exists in the firing process
  
• However, bad hiring practices can contribute
  greatly to the need to fire!
  
• Consequently, great care needs to be taken to
  undertake both hires and fires in a proper manner

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CONCLUSION AND SUMMARY

• Make sure the prologue and first chapter of the
  employment saga are letter-perfect
  
• If the last chapter will not be a happy ending,
  then make sure youd done the work necessary to
  make termination the logical conclusion to the
  saga
• Soul-search to make sure youre doing the right
  thing for the right reasons, and make sure youre
  doing it in the right way
  
• Make sure it comes as no surprise to the employee
  by doing your due diligence on up and out
  
• Honesty in evaluating and in terminating
• Compassion and courtesy in the final deed

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Resources

• Sample pre-termination checklist
• Adapt to your own circumstances, use as a
  soul-searching aid
  
• Article re elected officials involvement in
  personnel matters
  
• Articles on workplace issues hazing, bullying,
  fair and just workplace

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• QUESTIONS?