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Savvy Employers Steer Clear of Lawsuits
Learn to interview, promote and terminate employees without getting sued
Jeremy Thacker - Express Personnel Services
Job discrimination allegations and lawsuits are treacherous waters that even the most solid companies can find themselves navigating if they are not careful. No business wants to be hit with a lawsuit, but as the adage goes, “those who ignore history are destined to repeat it.” Savvy organizations learn from the mistakes of others and change course before they sink in the dark waters of employment litigation.
In 2004, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing job discrimination policies, collected a record $420 million from employers that violated workplace discrimination laws. Employees filed nearly 80,000 complaints with the EEOC. Complaints against employers included sex, race, age and disability discrimination.
Employers can reduce their chances of being sued for employment discrimination by knowing what constitutes discrimination and what situations are danger zones that require particular attention. Employers need to exercise special caution when interviewing, promoting and terminating employees.
There are a number of local, state and federal statues that prohibit discrimination based on protected class. Currently, the following groups are identified as protected classes under anti-discrimination laws: race, color, creed, religion, ancestry, national origin, sex, marital status, age, disability and veteran status. The most common federal statutes that provide protection to various classes of employees are: Title VII of the Civil Rights Act (Title VII), Age Discrimination in Employment Act (ADEA), Pregnancy Discrimination in Employment Act (PDA), Americans with Disabilities Act (ADA) and the Equal Pay Act (EPA).
During the interview
The best way to reduce the chances of discrimination during the interview process is to make interviews as uniform as possible. For example, if you ask a female candidate how long she plans to work for your company, be sure to ask male candidates the same question. Interview questions should remain focused on the requirements of the job and the candidate’s qualifications. Stay away from questions about candidates’ personal lives, ethnic background, religion or any other topics not directly related to the position.
Keep the following guidelines in mind when interviewing:
Unacceptable interview questions:
·When do you plan to have children?
·Are you married?
·What is your native language?
·When do you plan to retire?
·Do you suffer from any illnesses?
Acceptable interview questions:
·Will you be able to meet the attendance requirements of this position?
·Have you ever gone by a different last name?
·Do you speak any other languages that would be beneficial to this job?
·How long do you plan to work in this position?
·How would you perform the essential duties of this job?
On the job
Distributing raises, promotions and other employment perks is a delicate matter; employees who are passed over may become disgruntled and file complaints if they believe they were treated unfairly. To avoid potentially costly legal battles, employers should keep detailed records of the factors that influenced their advancement decisions. Documenting information will help employers defend themselves in the event that they are sued. Without documentation it will be difficult for an employer to prove that their decisions were merit-based.
The various acts employers must consider when making employee advancement decisions are abundant and can be confusing. Basic familiarity with these acts is essential to preventing discrimination lawsuits. For example, if an organization decides to promote a childless woman over a pregnant woman, they may be in violation of the Pregnancy Discrimination Act. Or, if a younger man is given a raise over an older man, the older man may have grounds for a lawsuit under the Age Discrimination in Employment Act. Another act that is frequently cited during discrimination lawsuits is the Equal Pay Act. The EPA mandates that organizations with 15 or more employees must pay men and women equally. This means that if a man and a woman perform the same job in the same organization, they must be compensated equally.
As a general rule, advancement decisions must be based on employees’ ability to perform the necessary functions of their job and not their personal situation or background.
Tips for lawsuit-free promotions and raises
·Show that promotion decisions were not based purely on supervisors’ subjective choices by documenting objective reasons for promoting one employee over another.
·Compensate and reward employees fairly based on the quality of their performance and the value of their contributions.
·Periodically audit the company’s reward system. Are particular minorities or protected groups earning and advancing less than other groups? If so, examine whether these patterns could be satisfactorily explained to an unbiased party.
Firing employees is never a pleasant experience, but the risk of being sued adds to the stress of the situation. As with hiring and promoting, terminating employees must be done in compliance with anti-discrimination laws. Additionally, it is unlawful to fire or reprimand employees in retaliation for reporting harassment or a workplace violation.
When an employer makes the decision to let an employee go, the process should be thoroughly documented. The documentation needs to contain valid reasons for the termination. Keeping detailed records will help validate the employer’s claims of fairness in the event an employee files a complaint.
Some employers may want to consider having employees sign a severance agreement. These types of agreements specify that an employee will receive certain benefits in exchange for agreeing not to sue the employer at a later date. Severance agreements should be reviewed by an attorney to ensure that the document meets specific state requirements. Employees should be given adequate time to review the agreement and should understand what rights they will waive by signing.
Anxiety over discrimination lawsuits is now a common part of hiring, promoting and terminating employees, but employers shouldn’t let fear paralyze them. While employment issues may not be as simple as they once were, common sense, fairness and consistency will go a long way in preventing discrimination lawsuits.
This article should not be used in place of legal counsel. Consult an attorney for specific information.