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University of Massachusetts Amherst

Family Business Center

Lawsuit-Proof Your Hiring

by Shel Horowitz

Will your hiring practices pass the scrutiny of a disgruntled job applicant's (or former employee's) legal team? Can you afford to defend
expensive discrimination lawsuits?

Thirty years ago, human resources was "anything goes." But not anymore. Attorney Mary Jo Kennedy, from FBC sponsor Bulkley,
Richardson and Gelinas, LLP, shed light on what you can and cannot ask at a job interview and what legal issues you must consider before you hire your next employee - or write your next employee handbook or policy.

She cited the example of a large defense contractor that refused to take back a former employee who had had a history of alcohol abuse and had tested positive for substance abuse, but came back sober three years later and demanded to be rehired. The courts found for the employee. But in a different case and in a different court, a paper mill could terminate a jailed employee with a long history of alcohol abuse.

Alcoholism can be protected, as well as pregnancy, race, color, religion, national origin, sex, age, disability (physical or mental), sexual
orientation, veteran status, and ancestry. Watch for more categories in the near future. Says Kennedy: "I'd bet my dollar on gender identity disorder" at the state level, within the next five years.

Another part of the hiring process is performing due diligence. It is important to verify the applicant's history and check references. Credit reports and CORI (Criminal Offender Record Information) checks are also available but have limitations and should be done with caution.

Avoid hiring minors and do not hire illegal aliens. Make sure the candidate is not restricted by non-compete or confidentiality agreements. Other no-no's are using lie detectors, and mental, physical, or genetic testing. There's a list of over 40 questions you're not allowed to ask (examples: When are you planning on retiring? Can you work the scheduled hours of this position? Do you own your own home?). In certain situations it is permissible to require a physical abilities test - if the test is job related. But all applicants for the position must be held to the same standard.

And then there's the whole can of worms involving oral promises and written job offers, contracts, policies, and employee handbooks. If, for instance, you specify a term of employment in your contract, or state verbally that workers have a job for a period of time, you could be stuck if an employee does not work out. You have much better protection if your employees are "at will." Even with "at will" employees, make sure you have a legitimate business reason for firing the employee.

Finally, do not forget to address ending the relationship in the initial documents. Does your contract address such issues as grounds for termination, non-solicitation, non-competition, protection of trade secrets, wooing away other employees, and severance pay?
It is probably a good idea to have a lawyer specializing in employment law review all your pertinent documents. A small legal fee now may save a huge, expensive court case later on.

For questions you are permitted and not permitted to ask, please see pre employment questions and pre employement disability questions.

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