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Here is how HR can help prevent the missteps that could cost your company big in court.
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Suppose a new employee told an employer during the application process that she could do X, Y and Z, but the employer soon realizes she really can do only X, and it needs her to perform Y and Z.
What if a new employee overstated his qualifications, claiming proficiency in Excel, but when he’s given a spreadsheet, he has no clue how to use it?
Dishonesty is among the most common signs that the wrong person was hired, according to Craig Annunziata, an attorney with Fisher & Phillips LLP in Chicago. Unexcused absences and too-frequent personal Internet use are also factors, he said.
Some employers have a zero-tolerance policy for dishonesty, Robert Whitman, an attorney with Seyfarth Shaw LLP in New York, told HR News. These employers might want to immediately terminate employees like the ones above. However, those employees also may claim that they weren’t dealt with honestly during pre-employment interviews, Annunziata cautioned, recommending that employers phrase offer letters with care to avoid claims of fraudulent inducement.
When an employer discovers that an employee has overstated her talents or outright lied about his abilities, employers should discuss the “cold facts” with the employee, but without any “overreactions,” Annunziata said.
Some employers have a zero-tolerance policy for dishonesty because being dishonest is a marker of a worker’s overall reliability and trustworthiness, Whitman noted. But other employers may try to work with an employee who otherwise shows a lot of potential.
There’s the human element to consider too, he observed. Suppose a new employee moved to a new part of the country to take a job. The employer may not be happy about the performance in the short run but may still give the employee a chance in such circumstances, he commented.
Even if the duty in question is not a significant part of what the employee does, the employer “will want to take a hard look at it,” as the employee did not deal with the employer candidly in the hiring process, Whitman remarked.
Employers should do what they can to prevent discharged new workers from claiming it somehow wasn’t up front with them, Annunziata commented. He recalled one employee who was discharged soon after moving to fill a new job. The employer discharged her after concluding that she’d overstated her qualifications. She sued, claiming she not only lost the opportunity she was hired for, but the opportunity she had in her old position. Her fraudulent inducement claim was settled “for quite a bit of money,” Annunziata recalled.
This type of claim is easier to counter if the employer includes in its offer letter a clear statement that the employee can be terminated with or without cause at any time, he said. Annunziata said he gets resistance from including this kind of language in offer letters from HR professionals who are concerned that it makes the employer look bad. Annunziata presses for the language anyway because it “wipes out the expectation” that the employee did not know he or she could be fired at anytime, however absurd that expectation might seem in the at-will private sector.
In addition to being on the lookout for the dishonest, Annunziata also recommends being alert to workers who spend inordinate amounts of time surfing the Internet. Sometimes when employers confront employees about using the Internet for personal reasons, the employees counter that they’ve finished all they had to do and were bored. A key question for Annunziata is whether the employees informed their bosses that they had finished their assignments and needed more work.
Unexcused absences, tardiness and missed deadlines are other telltale signs of hiring mistakes, he observed. If attendance is a problem right away, the typical employer will assume it will become an even bigger problem when any honeymoon with the new employee is over and the worker is comfortable with the position, Dana Connell, a Littler Mendelson attorney in Chicago, told HR News.
Supervisors and HR should trust their gut instincts and have open and direct communications with the new employees, but avoid walking into the discussion with any assumptions.
For example, an employee with attendance problems might disclose that he has been receiving medical treatment that he wanted to keep private, raising Americans with Disabilities Act (ADA) issues. Unlike the Family and Medical Leave Act, the ADA applies to new employees.
Sometimes, an employee of a nationally or regionally owned store who lives far from the store where he is employed may have attendance problems. He may be a better fit for a store closer to where he lives, Annunziata noted. And since there is high turnover in the fast-food industry, employers tend to work with people even with significant faults, he observed. But cash-handling violations and not calling in when missing work will swiftly get someone fired, he added.
“Face the emerging issues” as they arise, Annunziata said.
In the federal sector, HR faces more legal barriers to fire someone, even a probationary employee, as indicated in a Jan. 3 U.S. Merit Systems Protection Board (MSPB) report, Navigating the Probationary Period After Van Wersch and McCormick.
In Van Wersch v. Department of Health & Human Services (197 F.3d 1144 (Fed. Cir. 1999)), the appeals court decided that an individual is a federal employee in the excepted service—in this case for a person with a severe physical disability—with appeal rights to the MSPB if the person completed two years of current continuous service in the same or similar positions in an executive agency other than under a temporary appointment limited to two years or less. In McCormick v. Air Force, 307 F.3d 1339 (Fed. Cir. 2003)), an appeals court ruled that some probationary employees could qualify as a federal employee in the competitive service with appeal rights to the MSPB if the person has completed one year of current continuous service other than under a temporary appointment limited to one year or less.
The decisions conflict with federal regulations, which should be revised, the MSPB recommended. “In the absence of such a change in the regulations, federal agencies should issue a notice to managers and HR specialists, much like the notice included on the Department of the Army’s web site, explaining the Van Wersch and McCormick cases,” the MSPB stated.
Allen Smith, J.D., is SHRM’s manager of workplace law content.
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