HR Red Herrings
For all the recent shifting of the legal ground, some areas of potential employer liability are actually a lot safer than you might think. Despite the warnings you may have heard over the years, here are two areas in which you probably don't need to worry as much as you do:
Interview questions. This one sure gets a lot of watercooler talk. But even though certain probing interview questions may be technically illegal -- examples include "Would your spouse be moving along with you?" or "Are you planning on having any children?" -- they are not a major source of lawsuits, according to Fred Steingold. "People ask the wrong questions all the time," he says. "But you don't really see the major cases unless a pattern is involved."
Mary Dollarhide agrees that the questionable interview query is not a litigation hotbed. "You don't see a lot of this, except in connection with cases regarding the Americans with Disabilities Act," she says. When a candidate gets the job, he or she is unlikely to quibble over a dicey question. Still, it's a sound practice to give proper training to anyone in your organization who does hiring interviews.
Employment references. It's also a good practice to answer carefully when someone calls to ask you about a former employee's performance. Many companies now have policies about supplying only titles and dates. But that can be frustrating to other employers; just think how important that information is to you when you're evaluating a candidate for your company. Wouldn't it be great if we could all be just a bit more open?
Well, according to Steingold, you probably can. "You don't want to savage the person or psychoanalyze them," he says. "But as long as you stick to documented facts, you should be fine." A number of states have passed laws that attempt to protect employers who in good faith tell the facts as they see them. Even so, Miriam McKendall suggests you have outgoing employees sign a release stating that you, as their former employer, are permitted to give out performance information.
Being open when asked for references is especially important when a former employee was engaged in criminal activity while on your payroll -- bringing an unlicensed gun to work, for example. "That's not only appropriate, it may be your duty," says Steingold. "You could be held liable for failing to disclose that."