In order to help you navigate through laws covering employees and employment, we whipped up a some checklists of things to remember when you are hiring employees, dealing with employees or investigating and firing employees for misconduct.
The first checklist is a list of topics that should be avoided in interviews and on applications, if possible. They should be avoided not because they are plainly illegal, but rather they should be avoided because these questions/topics can be construed as being an indication that you are employing discriminatory criteria in the hiring process.
- marital status (this includes asking people for maiden name, previously used married names or the names of spouses)
- place of birth
- age (unless important to job)
- relatives (ask them for emergency numbers and other such information after you hire them)
- arrest record (you can ask about convictions, however)
- plans for having children in the future or number of children
- height, weight, etc.
- whether the person has been refused for a bond in the past
- jobs held by family members
- photographs (unless applicant is applying to be a model)
- health questions unrelated to job
- willingness to work on Saturdays or Sundays
- credit references
- military experience
This second checklist provides some general considerations to remember when you are investigating employee misconduct. Following these simple rules may reduce your exposure to lawsuits by disgruntled ex-employees fired for misconduct.
- Involve your attorney at the beginning by talking over your problem and anticipated actions. She can spot at the outset any legal problems you may have.
- Conduct a thorough and fair investigation of the alleged misconduct. Allow the employee to give you a full account of his/her side of the story. Obtain statements from other employees with direct knowlege of events (no second-hand information or heresay).
- Never threaten other employees if they do not want to cooperate with the investigation.
- Never touch your employees or tell them they cannot leave if, during the investigation, they want to end the conversation, refuse to cooperate or leave the room.
- Do not discuss the investigation with any employees who are not involved. Do not provide any information to other employees who are involved in the investigation except the absolute bare minimum necessary for the investigation.
- Never bring in any unrelated topics about the employees’ personal lives while conducting the investigation (e.g., “I know you have two kids that you need to provide for.” etc.)
- Never lie to employees about what is going on. Even little white lies are bad. You should simply refuse to discuss the matter.
- Keep memos on all conversations you have with employees regarding the matter.
- Take notes during all conversations you have concering the investigation.
- If you fire the employee as a result of the investigation, try to obtain an admission of misconduct from the employee before they leave, but do not use threats or other coercive means to wring a confession out the employee. (E.g., “I’ll tell the cops that you are a thief unless you sign this!”).