Hiring & FiringHiring & Firing

Chris W. McCarty, Esq.

Lewis, Thomason, King, Krieg & Waldrop

Knoxville – (865) 546-4646

The Top 10The Top 10

1) Obvious Boundaries

2) Proper Job Description

3) Legal Advertisement

4) Pre-Employment Interview

5) Fair Background Check

6) At Will Employment

7) Clear Warning Sign

8) Candid Discipline

9) Thorough Documentation

10) Post-Employment Interview

Obvious BoundariesObvious Boundaries

– Title VII of the Civil Rights Act of 1964 (Title VII) • Can’t discriminate on basis of race, religion, gender, etc.

– Age Discrimination in Employment Act (ADEA) • Can’t discriminate against employees over age 40.

– Americans with Disabilities Act (ADA) • Can’t discriminate on basis of physical or mental disability.

– Retaliation Laws (e.g., whistleblower, internal complaints)

– Other State and Federal Protections

Proper Job DescriptionsProper Job Descriptions

– DO carefully consider bona fide occupational qualifications.• DON’T write that each secretary must be able to lift 100lbs.

– DO use specific language and qualifications.• DON’T consider “Must Read” to be a good qualifications section.

– DO update descriptions according to issues and needs.• DON’T keep using “typewriting” under a skills heading.

Legal AdvertisementLegal Advertisement

– Write to reach the largest number of qualified applicants.• DON’T use “High Times” to look for new F.B.I. agents.

– Avoid gender/race specific language.• DON’T use this:

– Skip descriptors referencing or inferring age.• DON’T look for a “young, energetic” cook when you need a “cook.”

Pre-Employment InterviewPre-Employment Interview

– DON’T Ask…. DON’T Tell… Is Alive… And Well

– Sample Topics to Avoid

• Race – Organizations

• Sex or gender – Marital status– Plans for children

• Religion – Church membership

• Age– Date of birth– Graduation date

Fair Background CheckFair Background Check

– DO consider whether each job requires a background check.• The EEOC believes blanket checks are discriminatory.

– DO obtain written authorization before running.• Checks run up against a number of privacy laws.

– DO remember the Fair Credit Reporting Act.• Before using a background check for an adverse action under FCRA:

– Provide a notice to the employee that includes a copy of the consumer report you relied on to make your decision; and

– Provide a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” which you should have received from the company that sold you the report.

At Will EmploymentAt Will Employment

– Tennessee remains an “at will” employment state.

• You can fire someone for cause OR no cause.

– To preserve the “at will” status of a new employee, please:

• Be careful about what he/she is signing (don’t create contracts);

• Be wise about how your handbook or policies are written; AND

• Be hesitant to make any long-term promises.

Clear Warning SignClear Warning Sign

– You thought the hiring process went well, BUT…

– Johnny is a nightmare. Should you get rid of him?

– 3 “Warning Sign” Characteristics:

• No accountability– It was “not me.”

• No character– Once a cheater (or thief), always a cheater (or thief).

• No allies– If no one sticks up for Johnny… There’s probably a reason.

Candid DisciplineCandid Discipline

– When choosing a disciplinary style…

• Candid > Progressive

– “Candid discipline” means:

• Be honest with yourself and with the employee;

• Be clear about failed directives and future expectations; AND

• Be forthright in evaluations and personal interactions.

Thorough DocumentationThorough Documentation

– There is an old saying amongst trial lawyers:

• “One document is worth ten witnesses.”

– You have heard, “If you build it, they will come.”

• I also like, “If you write it, they will believe it.”

– “Document” does not mean write a novel.

• I would often settle for:

– A journal entry;

– An e-mail;

– A short memo.

Post-Employment InterviewPost-Employment Interview

– When firing an employee, remember to:

• Use a witness;

• Explain the reasons for termination; AND

• Conduct a post-employment interview:

– “Do you agree with how this situation was handled? Why/Why not?”

– “Do you know of anything we can improve on as a company?”

– “Is there anything else you want to say to me?”