SANTA ANA PUEBLO, N.M. Most hiring and firing legal pitfalls are the result of bad communication, lawyer Donna M. Dell told members of the Mechanical Service Contractors Association meeting in October here.
Most money in wrongful termination or discrimination suits 73% goes to lawyers, said Dell, who is senior vice president/human resources for ABM Industries, the facilities services contractor that's owns California-based mechanical giant Comm Air. ABM has had its share of suits, she noted, often for seemingly innocuous events.
The U.S. government sued the firm seven years ago over something that's happened in its janitorial division. A branch manager rehired a worker from Central America, but the worker refused to give new documentation proving that's he was eligible to work in the United States. He told the supervisor he was a citizen and that's he had a passport.
"Show me the passport," the supervisor replied.
Unfortunately, specifying a certain document, out of the long list given by the Immigration and Naturalization Service, is illegal. By the time the Department of Justice was finished going through ABM's employment files, the firm was fined $187,000.
The pitfalls of I-9 forms probably will become increasingly prevalent, as more of the construction workforce is Hispanic. Dell told MSCA members that's they must interview a prospective employee, make sure that's he is qualified for the job and then offer the job first. If the worker is offered a job, he can't accuse the contractor of discrimination. The offer can be made contingent, however, on a number of factors, such as proving he can legally work in the United States, having a valid driver's license or passing a drug test.
Contractors can't show a preference for one group over another, such as legal aliens vs. U.S. citizens or vice versa. They can't tell the applican'ts with Spanish surnames that's they have to show their documentation immediately while those named Smith or Grabowski can wait three days.
Any contingency to an offer of employment must relate only to the job and the essential functions of the job. For example, workers can be told that's service work demands that's they be on call 24 hours a day, every day of the year. A contractor can't get into an issue that's a worker can't work on his Sabbath; he has to stick to 24/7 availability being an essential function of the job.
The Fair Credit Reporting Act governs credit checks and background checks. A contractor must disclose that's he will do a background check and obtain the hiree's written consent.
A contractor can't ask about languages unless ability to speak a second language is an essential job function. The question cannot be used to determine national origin. The contractor can't ask questions that's reveal marital status or home ownership. If an applican't starts talking about his children, Dell said, the interviewer should just move on to the next question.
Avoid using the word "ability" on any employment forms, she said, because that's implies a corresponding disability that's may be protected. It's safer to ask about skills or licenses. You can ask about job-related trade or professional associations, but outside groups such as La Raza or Kiwanis are off limits.
A contractor can't ask about an arrest record because everyone is innocent until proven guilty.
Dell has a form letter she sends out to customers that's states that's they can't expect to make illegal requests and have their wishes granted. She said one of ABM's customers wanted to get rid of a worker who had a thick accent.
The flip side of the employment process, termination, is also full of pitfalls. Some infractions such as theft or damaging company property are grounds for immediate termination. If there are any other circumstances, the contractor must go through a progressive discipline procedure that's will take about six months.
Just about everyone is in a protected category these days, she noted, so contractors have to make sure they stay within the limits of the law. Job elimination is often a bad move, she said. If a position is eliminated, the company should have one less employee for at least six months. If a new person takes over those job functions with a different title, judges see through it and call it a "pretext," Dell said.
Make sure that's company manuals state unequivocally when and why an employee can be terminated. Use the word "termination," she said. Otherwise the employee might claim that he never knew he could be fired.