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This document is terminology and topics of concerns of employers. Employees would also benefit by knowing these terms for their own protection.
Chapter 1 - Pre-Hire___________________Email me for any services needed.
There are at least seven laws, both state and federal, mandating different lengths of time various employment records must be kept. A chart showing which records are covered by these laws and the length of time records must be kept under each law appears in the "Records Retention Requirements Chart".
For the sake of practicality, many employers simply keep the bulk of an ex-employee's personnel file and other records for the duration of employment plus four years. This covers nearly every law, with the exception of three types of records which must be removed from a file before it is disposed of and retained for a longer duration. These important exceptions are:
Employment records should be kept in individual personnel files, and access to these files should be restricted. As personnel files may contain sensitive and private information, they should always be kept in a locked cabinet with access controlled by a single individual from whom authorization must be gained before others may view the files.
One appropriate procedure for ensuring confidentiality is to establish a second file for each employee for information protected by privacy laws. This confidential file may contain medical records and any other sensitive information, such as private financial records. It should be kept separate from the regular personnel files and access should be granted only to those with a legitimate need to know the information. For example, a supervisor who is considering a particular employee for a promotion to a clerical position in another department probably has no need to know information about that employee's pre-employment physical. On the other hand, if the position to which the employee will be promoted requires heavy lifting, records from the pre-employment physical may be necessary to assess the individual's restrictions or necessary accommodations.
An employer is required to maintain a record of the sex, race and national origin of applicants and employees apart from personnel files. These records must be maintained to demonstrate, if necessary, that the employer is attempting to recruit and develop a workforce reflective of the community's ethnic profile. Keep these EEO records in a common file rather than in each employee's own personnel file. All employers with 15 or more employees are required to maintain a record of the above mentioned information.
Forms and information verifying the right of your employees to work in this country (I-9 Forms, photocopies of verification documents) should be kept in a common file rather than in each employee's own personnel file. This ensures that the information will be easily accessible for an audit by immigration or labor officials.
Employees must have access to their own personnel records, both while employed and after termination of the employment relationship until the applicable statute of limitations runs out on any possible legal claims. Employees also may grant authorization in writing for any other individual to have such access.
Inspection may be limited to once a year unless there is reasonable cause to believe the file has been altered in a manner that might adversely affect the interests, promotion, etc., of an employee, or if the file contains information that may be pertinent to an ongoing investigation that affects the employee. Notes may be taken about the contents of the file.
Employees may view their files at a reasonable time and place by appointment, usually during business hours in the office where personnel files are maintained, unless another time or place is mutually agreed upon. The employer may require the employee to view a file during the employee's free time. Employers have a right and responsibility to monitor the employee's inspection of a personnel file to ensure that nothing is removed, destroyed or altered, and to return the file to the proper place when the inspection is completed.
Employees may not inspect certain records, such as records of criminal investigations or letters of reference maintained by the employer. On the other hand, an employee has a right to a copy of any document he/she has signed relating to obtaining or holding employment subject to a reasonable fee for each copy.
Before you can begin the hiring process, you must find quality applicants who can do the job. There is more to finding the right employee than placing a simple "help wanted" advertisement. For those unfamiliar with the complex and often perplexing laws pertaining to equal employment, finding the right employee can be like walking through a minefield of potentially explosive illegal decisions and actions.
Whether you advertise positions in-house or in outside publications, remember that the same guidelines apply to both. For example, you could violate gender discrimination laws even by thumbtacking a casual notice onto your lunchroom bulletin board to announce that you are accepting applications from current employees for a newly created "salesman" position.
Under the Americans with Disabilities
For example, you may think it is essential that a file clerk be able to answer the telephone. But if the majority of the file clerk's time is spent filing and retrieving, and telephone calls usually are handled by others in the office, then answering the telephone probably is not an essential function. In this situation, a hearing-impaired individual applying for the position of file clerk may not be ruled out based on his/her disability. On the other hand, if the file clerk is one of only three employees in a small but busy office, answering the telephone may be an essential function.
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However, a number of court decisions
have seriously eroded
For example, an implied contract for a certain duration might be found if an employment advertisement describes a "secure position" or asks for candidates willing to make a "long-term commitment to the company." Avoid advertisements indicating your company is "like one big happy family" or "looking for someone who can grow with the company."
Language. When drafting a help-wanted advertisement, avoid language indicating limitations or exclusions on the basis of race, color, national origin, religion, sex, age, marital status, sexual orientation or disability. Words or phrases such as "young and energetic salesman," "waitress," "repairman," "perfect for a single person willing to travel" should be avoided. Replace them with "enthusiastic salesperson," "foodserver," "repair person" and "travel required."
Bona Fide Occupational Qualifications. While extremely rare, no discrimination will be found if otherwise prohibited language is used where it identifies a "bona fide occupational qualification" (BFOQ). For example, an advertising agency may specify a "male model" and include only photographs of men for the purpose of finding a model for an advertisement for men's suits. Being male is a BFOQ for this job.
Where to Advertise. Running an advertisement solely in publications geared toward one sex, religion or race (or any other protected class) could be evidence of your intent to discriminate, unless you have an obligation to do so under an affirmative action plan. Instead, place job advertisements in general interest publications, or in a wide range of special interest publications.
Action. Not all
No. However, employment applications are a simple method for evaluating a potential employee's experience, skills, training and limitations. While resumes are helpful tools, they often do not contain the range of information that may be revealed by completion of a standardized employment application, such as the one contained in this Guide.
The sample employment application in this chapter allows you to gather a great deal of pertinent information without creating liability for discrimination. It has been reviewed thoroughly to ensure that all questions are acceptable under the equal employment laws.
The "Guide for Pre-Employment Inquiries" in this chapter contains 19 categories of potentially discriminatory questions, as well as examples of what is prohibited and what is acceptable. Note that this list applies to all pre-employment inquiries, whether on an application, in an interview or even during an informal lunch with an applicant.
Look carefully at any application you currently are using and compare it with the "Guide for Pre-Employment Inquiries" and the sample application contained in this Guide. Does your employment application contain questions that are prohibited?
In addition, remember that
When reviewing your application, be
sure to consider the impact of new laws such as the Americans with Disabilities
Act. As of
In addition to its role in gathering information, an application can be designed for damage control in anticipation of the possibility that an applicant/employee may later sue you for such things as wrongful termination, defamation or invasion of privacy.
The sample application in this Guide contains several damage control provisions. For maximum legal protection, employers should be aware that upon hiring an applicant, each of these provisions should ideally become part of independent agreements on each subject between the company and the new employee.
à An authorization to check all references listed by the applicant. Since you may be liable for "negligent hiring" if you fail to check an applicant's references, this damage control provision will help protect you from a claim that the applicant's privacy was invaded. It also will be easier to gain information from former employers if they are aware that their former employee has authorized disclosure to you. Be aware, however, that this release cannot protect you against claims of intentional misconduct or employment discrimination, such as deliberately asking a former employer for protected information, such as medical history or marital status.
à A clause requiring arbitration in the event of a dispute
stemming from a later termination. Both
à A statement that all answers given by the applicant are true, and any omissions or false information are grounds for rejection of the application or termination. Recent court decisions have allowed employers to use an applicant's placement of false information on a job application as evidence in their defense of wrongful termination lawsuits, even when the employer did not discover the information was false until after the employee was terminated!
à An initial statement that any future employment will be on at at-will basis. This clause helps to preserve the presumption that employment is at-will, and states that any contrary representations must be contained in a signed writing to become binding.
Each of the above provisions should be initialed separately by the applicant in a space provided in the margin of the application. By drawing attention to these important provisions, you will make it less likely that an applicant later will be able to claim successfully that he/she was not made aware of what he/she was signing. While not foolproof, such provisions may keep you out of court or tip the balance of evidence in your favor.
Retention requirements vary among each of the laws pertaining to them. A chart outlining these requirements is found at the end of the "Introduction" section of this Guide. A good rule of thumb is simply to keep for at least two years all job applications of those who are not hired. Keep applications from those who are hired for the duration of employment plus two years.
Note that you are not required to keep unsolicited resumes or applications. Some employers simply send them back to the applicant along with a note explaining that there currently are no openings for the position sought. On the other hand, you may decide to keep the unsolicited applications and resumes in a separate folder as a pool of potential employees who wanted to work for you enough to send a resume even though they did not know of a job opening.
If you talk to an applicant at the time he/she gives you his/her completed application, you may be tempted to jot down a few things in the margins. Resist that temptation unless your notes meet the tough test of being completely legible and not open to any misinterpretation and do not touch upon any of the discriminatory categories.
An employer made a notation on the application of a candidate for a position at the jewelry counter of a large department store. While he intended the notation to mean "no experience selling jewelry," the words "no jew" resulted in the applicant filing religious discrimination charges against the store.
All employers with 15 or more employees must keep records showing the percentages of minorities and non-minorities and men and women in various employment classifications in their workplace. These records may be required by the Equal Employment Opportunity Commission (EEOC) and/or the Fair Employment and Housing Commission (FEHC) to demonstrate that the employer is attempting to recruit and develop a workforce reflective of the community's ethnic pr