Best Practices for Hiring and Firing Employees With Guidance From a Lawyer for Employers

As a member of an HR team, you have a challenging job. You are tasked with determining who among dozens or hundreds of strangers is the right person to join your employment workforce. If making this type of decision wasn’t hard enough, there are stringent restrictions on what factors you can use to determine who to choose.

One of the other major aspects of your job is equally difficult. Even if the decision to terminate an employee isn’t yours, you are often the final person a fired employee deals with. Depending on the exact description of your job, you may also participate in firing decisions or have to make the difficult final decision about who to remove during layoffs.

While every business will have different policies for hiring and firing, certain best practices that follow the law can protect you and your employer from legal action. It is also best to have a lawyer for employers to look over any policies and assist with training new members of your HR team.

Best Practices for Hiring an Employee as Explained by a Lawyer for Employers

Federal labor laws prohibit many types of discrimination in the workplace. That prohibition starts with hiring. You can’t, for example, refuse to hire someone because they are a woman or have a disability that wouldn’t affect their ability to complete their work duties.

In 2023, the U.S. Equal Employment Opportunity Commission filed over 80,000 charges of discrimination. Many of these charges were based on the hiring practice. Typically, that is because of questions asked during an interview.

Interview Questions for the Employer

It can be harder to avoid illegal discrimination than you might think. A seemingly innocent question could leave you open to a discrimination lawsuit, requiring you to hire a lawyer for employers. You probably know not to ask direct questions about a potential employee:

• Age
• Gender
• Religion
• Nationality
• Marriage status
• Race

However, you might be asking questions about those things without intending to. For example, if you ask someone when they graduated from high school or college, you are effectively asking their age. It is only important that you know that they graduated rather than knowing when.

Also, be wary of meandering interviews. While it is common for an interview to become more of a conversation, especially when someone appears to be a good fit, it’s easy to stray into topics you want to avoid. If you notice this happening, gently explain that there are topics you can’t discuss during an interview and steer the conversation elsewhere.

Benefits and Financial Arrangements

When you have reached the point where you offer a prospect a job, you also need to take care. You can still be at risk of facing discrimination allegations, especially if you offer the prospective employee different wages or benefits than others in the same position.

You need to be able to justify any differential on factors that have nothing to do with their protected classes. It helps to have a lawyer for employers to look over all offers.

You also need to be wary about what financial information you gather from your future employees. While you will need specific information to complete IRS paperwork or to pay them, you should limit what you ask for to only the essentials.

It is easy to accidentally get more information about an employee’s economic background than you should during this part of the process.

Best Practices for Firing Employees as Explained by an Employment Lawyer

Firing employees can be a quagmire, especially because there are usually several people in a business organization who have the power to fire employees. Many of them may not be part of the HR team and thus may not fully understand the liability the business could face when someone is facing termination. Consulting with an experienced employment law attorney can help with ensuring that the firing process adheres to legal standards and minimizes the risk of lawsuits. Along with any additional precautions recommended by your employment attorney based on your specific situation, using these best practices as a guide can help you when making such an important decision:

Wrongful Termination Training and Guide to Abide by Legal Practices

If you want to limit the liability of your business, all managers should receive wrongful termination training from an experienced business attorney. The better that everyone with firing power understands federal and local laws of wrongful termination and how to limit risk to the company, the less likely you are to face a lawsuit from a fired employee.

Create a Workplace Process That Involves Checks and Balances

One of the best ways to protect your business from potential litigation is to prevent any employee from being fired on a whim. The biggest risk of liability can happen when a manager gets angry and fires an employee on the spot. That type of emotional response usually results in mistakes.

For example, imagine a scenario where a client didn’t receive some services that they paid for. The manager might immediately believe it was due to an employee’s poor performance when handling the client and immediately fire them, only to discover later in time that the mistake was caused by miscommunication in another part of the process and the employee wasn’t at fault.

Even with an apology, the employee is unlikely to want to work for the manager again. They may be able to take legal action depending on exactly what happened and the terms of their contract. You will also want to document everything when meeting with the employee, manager, and HR team.

This could all be prevented if you have a process that requires any recommendation for firing to be investigated by a member of the HR team. This means that a neutral party is looking at the circumstances and determining whether the removal of the employee is justified.

Severance Packages

Another simple way to limit the liability of your business is to provide severance packages for firings. This may seem inappropriate when an employee has violated company rules and been fired for cause. However, the cost of a few weeks’ pay is a relatively minor expense compared to a potential lawsuit.

Protecting Your Company From Liability During Hiring and Firing

Both adding a new employee to your business and removing one can put your company at legal risk. By following carefully defined best practices and laws, you can greatly limit that risk. Your termination process should be the same across all terminations and the same for your hiring process. This will ensure any issues can be avoided.
The right lawyer for employers can help you build those practices and train your staff to follow them carefully during all hiring and firing decisions.

Contact Pearlman, Brown & Wax, LLP Today for Counsel

If you need guidance on hiring or firing employees, it’s essential to consult with an experienced employment attorney to ensure your practices comply with the law and minimize risks. Contact the Law Offices of Pearlman, Brown & Wax, LLP today for expert legal counsel and assistance in protecting your business.