Saturday, January 24, 2009

Be accurate or be sued!

Why HR managers should be legally correct while recruiting .....

Escalating employment related lawsuits have made workplace environment increasingly controversial. Not a day goes by without an allegation being made, a grievance filed or a suit filed in court.

According to an attorney Jasan Boulette, in a tight labour market most lawsuits filed relate to alleged racial, gender or age discrimination. Many employees quit and join other organisations due to discrimination or unethical behaviour in the workplace.

The hiring process

Organisations large or small, intending to operate globally can't afford a misstep in the hiring process. According to the geographical locations, HR at the corporate level must establish and enforce clear policies for hiring, firing and performance evaluation as well as for general work environment issues. Employee claims are very costly, not only in financial terms but also in time lost reviewing files, interviewing witnesses and attending court sessions. HR managers need to periodically update departmental and management practices to avoid the litigation traps.

International recruitment process curtails manager's employment decisions or any action based on an individual's race, colour, gender, religion or national origin. It is advisable for organisation's to perform an audit of HR practices and procedures to uncover potential problem areas and recommend corrective action. The audit should cover all areas including interviewing practices.

Interviewing practices

The interview process by itself can be a minefield of lawsuits! An organisation can be sued for asking improper interview questions, making discriminatory statements or binding contract statements. Risk management in the interview process can be minimise these problems

The inquiry

Managers and interviewers often fail to realise the point when their interview questions go of tangent. Hence, interviews must be well planned. Interviewers need to be carefully trained. Most organisations have two or more managers on the panel. This makes it easier to resolve issues of what transpired during the interview.

Interviewers can also rely on a structured list of questions to guide them in the process. These can even be practiced. Thereby they can avoid objectionable questions.

The interviewer needs to review the resumes of applicants well in advance. This review can be used to develop the interview questions. Interview questions should be drawn from the job description, position requirement and issues the organisation is currently facing.

"This job requires a lot of typing, how fast do you type?" "Do you prefer routine consistent work or tasks that are fast-paced and why?" Such open-ended questions allow candidates to talk about their skills, knowledge and abilities.


A prescribed interview format leaves less room for claims of discrimination. Interviewers can make notes and ask for clarification of answers but should avoid additional questions.
Some organisations adopt interview forms containing objective criteria that serve as a checklist. This not only ensures uniformity between interviewers but also serves as reference in case a rejected candidate files a suit. Interviewers must be aware of topics that need to be avoided. For instance, asking older applicants whether they can serve under younger heads can be misconstrued as age discrimination.

Contract trap

Statements like-"If you do a good job there is no reason why you can't work here for the rest of your career," can create notional contracts of permanent employment. On several occasions even courts have held that such promises constitute contracts and bind the employer.

Interviewers should avoid using terms like 'permanent', 'long-term', while describing the job. Also, statements that imply the employment will continue as long as the employee performs well should be avoided. If an employee is laid-off say, during an economic slump, he can sue the organisation for breach of contract.

Detrimental reliance

One key concept that managers need to be aware of is 'detrimental reliance'. While hiring, managers make a 'recruiting pitch' that doesn't hold after the candidate is hired. If the candidate makes a life decision based on the pitch (sells house and relocates) but upon arriving learns that what was promised is not being delivered -a lawsuit is in the making.

At times detrimental reliance is subtler. While hiring a candidate with competing offers, recruiters talk about the great long-term future, the opportunity for wealth building and rising to the top. The candidate assumes that such opportunities are in the offing, rejects others and accepts the offer only to realise that the hiring pitch took him in. Such an employee too could sue the organisation.

Interviewers should use generic yet encouraging statements. "There is plenty of room for those who do well with us." And "We pay competitive salaries." Such statements can't be construed as implied contracts.

The right track

For consistence in hiring, some organisations use customised or standard behavioural- based interview guidelines. They train their recruiters and other personnel involved in interviewing on legal and effective interview questions and interviewing techniques.


Organisations also conduct a job analysis audit for every position to establish behavioural and situational questions for the interviews. This audit helps organisations in identifying core competencies, behaviours and decision-making styles and technical skills required for the particular job. They can thus establish a benchmark and design the interview accordingly.

Asking a candidate about the typical customer interactions in his position reveals his customer service orientation. Questions about the standards he sets for doing a good job uncovers his work standards, while asking for situations when he used an innovative course of action can help bring out his potential to develop innovative solutions. Such legally defensible behavioural questions help in discovering core competencies.


An interviewer should avoid questions not related to work like candidate's leisure interests, community activities, child -care arrangements, credit standing, marital status or religious observances.

A healthy and productive workplace starts with the hiring process that in turn begins with the interviewing process. With proper interviewing and hiring procedures in place, HR can minimise the risk of lawsuits and become an employer of choice.

Ref: TheManageMentor

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