On March 16, 2006, Dr. Tom Rogers and Jim Velos of The Rogers Group (industrial/organizational psychologists and consultants), interviewed me on their Voice America Business channel program: Business Dis-eases: Cure Them or Die. The URL for Voice America’s Business channel is this.  You can listen to the interview here.

Dr. Tom and Jim used my February 2, 2006, seminar at Evanston/Northwestern University’s Small Business Development Center as a platform for further Q&A concerning labor and employment law and human resources (HR) management issues. This post summarizes the 45 minute interview (the seminar was 2 hours). I’ve also added comments not included in the interview.

This was my 2nd interview on the show. My 1st interview was on December 8, 2005. If you’re interested in listening to my 12/8/05 interview click here. Also, a print summary of my 1st interview is available on this blog. It’s my January 5, 2006 post.

TOPIC #1: CAN AN EMPLOYER ASK JOB APPLICANTS ABOUT DRUG & MEDICINE USAGE, ARRESTS OR CONVICTIONS?

As a general rule, employers should not ask questions concerning disabilities, drugs and medications. This will help minimize allegations of disability discrimination. Applicants can be asked if there are any essential functions or duties that they cannot perform with or without accommodation.

Post job offer, you can inquire as to the nature of any limitation or request some sort of medical documentation or clearance if appropriate. Post offer, you can also ask the prospective employee to pass a drug test, physical or medical examination. This way an employer can determine if any illegal drug usage, condition, medication, etc., prevents the new employee from performing their duties with or without reasonable accommodation.

The idea of asking applicants or prospective employees about performing the essential job functions or duties requires a valid job description. Consequently, some level of job evaluation or analysis needs to be conducted. The depth depends on the nature of the job and the company (see below Additional Comments).

Regarding arrest records or criminal convictions, most states prohibit inquiry into arrest records. Relative to criminal convictions, you can ask about these. However, from an HR perspective, it’s better to connect the prohibited criminal conduct with the job’s duties. For example, you can ask about convictions in order to prohibit convicted criminals from handling money and working around children. However, if there’s no logical tie between the conviction and the job duties, then you may have a problem with discrimination. More specifically, it might seem discriminatory if you ask if the person has been convicted of a crime involving money when the position doesn’t place the employee in contact with money or merchandise.

In short, in order to avoid trouble and expense, ensure that your employee selection procedures and job descriptions are valid.

Also, be mindful of the differences between federal, state and local labor and employment laws. For example, the Americans with Disabilities Act applies to employers with 15 or more employees. However, many state and local disability laws apply to companies of all sizes.

Additional Comments: If this sounds difficult or confusing, remember, I’m talking about preventive and proactive HR. Ultimately, preventive and proactive HR saves time and money because it helps prevent lawsuits and government inquiries. Therefore, it also helps to minimize a business’ exposure and liability should something go wrong.

It’s very important to define the job and its primary and secondary functions. This is accomplished via a valid job evaluation process. Once this is completed, it will be easier to develop selection criteria and the selection process. Of course, the depth of this process is contingent on the nature of the business and the position. For example, the position of convenience store clerk requires much less analysis than that of a computer programmer or welder. Again, these proactive and preventive processes could greatly diminish a business’ chances of being hit with an employment discrimination complaint.

TOPIC #2: SHOULD A BUSINESS CONSIDER HAVING AN EMPLOYEE HANDBOOK, MANUAL OR POLICIES?

Yes. All companies should consider having some type of document or statement indicating the business’ mission (i.e., how it will earn money), culture and how employees can expect to be treated. This can be a half of a page, a few pages or hundreds of pages.

The depth and quantity of the content depends on the nature of the business. It’s easy to explain the mission and culture of a fast-food restaurant. It’s more difficult to explain the mission and culture of an aerospace, civil, and military defense conglomerate.

Some key issues in devising a handbook or policies are communication and expectations. What’s to be accomplished by having policies and manuals? It should be done with a purpose in mind, not for the sake of doing it.

Additional Comments: Don’t publish such documents without having an attorney review them. You don’t want to issue anything that contains illegal or unnecessarily binding language. Be preventive and proactive.

TOPIC #3: A BUSINESS WITHOUT AN ATTENDANCE POLICY, OR WITH A LOOSELY ENFORCED POLICY, WANTS TO INCORPORATE ATTENDANCE INTO ITS POLICIES DUE TO ONE EMPLOYEE’S POOR ATTENDANCE RECORD. WHAT CAN AND CAN’T THIS BUSINESS DO?

Generally, attendance policies can be implemented anytime. A business should implement and enforce such a policy across the board and not just single out one employee; i.e., it should apply to all levels equally. Such a policy can include provisions for absence without leave (AWOL) or job abandonment, family, bereavement or medical leave of absences, paid and unpaid time off, and excessive absenteeism. There are numerous options available in order to minimize absenteeism and tardiness, while permitting employees to attend to other obligations.

Implementing such a policy can also help create documentation prior to an employee complaint or lawsuit. Such documentation and policies may help keep the government, former employees and their attorneys out of a business’ back pocket, because when a business is required to respond to a complaint or inquiry because of the documentation is already created and easily available.

These policies also benefit employees by clearly stating what’s expected of them and what options they have should time off be needed.

TOPIC #4: CAN OR SHOULD AN EMPLOYER PROVIDE A NEGATIVE REFERENCE REGARDING A FORMER EMPLOYEE?

For all practical purposes – no.

It’s true that some states immunize employers from liability for negative references so long as the reference is performance related and truthful. In Illinois, for example, employers are immunized per the Employment Record Disclosure Act. Nevertheless, I recommend that employers only provide neutral information such as confirming that the person worked for them, positions held and dates of employment. The less said the better. Such a practice helps minimize exposure and liability. Liability may entail common law torts such as defamation, libel or slander.

If an employer decides to communicate performance related information to another employer, then this information should be truthful, given in good faith and documented to minimize exposure. Accurate performance information is generally obtained from a validated or relevant performance appraisal system. The validation process is contingent upon the nature of the business and job. For example, it doesn’t take as much effort to devise a valid performance appraisal system for an auto mechanic as it does for an airplane mechanic.

Remember, if the reference is based on an invalid and unreliable performance appraisal process, then it’s possible that the reference itself will be deemed invalid and unreliable by a third party, like a judge or arbitrator. “Garbage in, garbage out.”

Additional Comments: One exception to the aforementioned general rule is that it’s advisable to give a negative reference if the employer truthfully believes that the former employee poses a significant risk to the public, the employee was fired due to this risk, and the employee’s performance issues were documented. This could help immunize the former employer from negligence should the former employee be hired by the inquiring prospective employee and subsequently harms the public.

Additionally, if the employee was outstanding, there’s usually nothing wrong with giving a glowing or positive review, so long as it’s truthful.

TOPIC #5: CAN AN EMPLOYER REGULATE WRITTEN, VERBAL AND ELECTRONIC COMMUNICATION IN THE WORKPLACE?

Yes. Such regulation can be accomplished via policies or some other form of workplace mandate.

Generally, companies do this to maintain the confidentiality of trade and business secrets and to avoid misconduct such as harassment and discrimination.

Essentially, electronic forms of communication such as e-mail, instant messaging, blogging, list serves, etc., are no different from any other company related property like a company car, locker, desk, etc. If the company owns the messaging equipment, or if the communication is on company time or on company property, then it should be for the company’s benefit. The employer owns and can read an employee’s e-mail, instant messages, etc. Exception may exist if the company, law or contract grants other rights. And no, this isn’t a 1st Amendment issue.

TOPIC #6: ARE EMPLOYEE ASSESSMENTS AND TESTING A GOOD IDEA?

Yes. Of course, there are caveats.

Valid and reliable tests should be used, and the instrument should be used solely for the purposes intended. Correct usage of a valid test should help avoid disparate treatment and impact against protected classes. Also, the use of a battery of instruments, devices or a multi-disciplined approach may work better than just one test or technique.

Other selection techniques such as job interviews should be validated too. For example, if a company uses a validated test to eliminate 95 of 100 applicants, then relies on a shoddy interviewing process to select among the final 5 candidates, it may be exposing itself to legal liability. The whole process should pass legal and scientific scrutiny.

The test or instrument should be successfully validated on a relevant population. That is, a test or assessment to select airline pilots should be validated on airline pilots. It shouldn’t be validated on a population of monkeys.

TOPIC #7: CAN AN EMPLOYER USE OR REQUIRE A WORK SIMULATION IN THE SELECTION PROCESS?

Yes. But, the simulation, like any other selection technique should be valid and reliable in order to avoid issues like disparate impact or disparate treatment discrimination.

The simulation should be based on the essential or primary functions of the job. The essential or primary functions of the job can be identified via a valid job description. Again, the depth or complexity of the validation is contingent upon the nature of the business and complexity of the position.

Dr. Tom Rogers also pointed out that the simulation can be used to test current employees.

The employer isn’t required to pay a prospect for the work simulation. However, an employer shouldn’t test a candidate by giving them real work. Furthermore, job seekers should avoid sleazy employers who try to get free work out of candidates via phony job simulations and with no intention to hire them. Such employers may be liable for payment of wages and other theories of liability.

TOPIC #8: IS EMPLOYMENT AT WILL A REALITY OR IS IT A FALLACY?

Employment at will is the doctrine that states that an employee can be discharged for any reason, at any time, with or without cause or notice. Likewise, an employee can quit at anytime, for any reason, with or without notice.

At will employment is the law of many states. But, in practical terms, it’s a fallacy because workers compensation, unemployment compensation and other labor and employment laws diminish its impact. In reality, terminating an at will employee is still an expense which a business needs to determine prior to separation. Moreover, in order to minimize or eliminate legal exposure and liability, a business needs to decide when and why it fires someone and what recourse that employee has, prior to terminating that employee. In short, employment at will is more effective when a business practices proactive and preventive HR.

The proactive and preventive approach might be unusual for entrepreneurial companies which tend to move more quickly, and consequently, might disdain the more analytical and deliberative approach I’ve suggested. Yet, even the smarter of the more entrepreneurial companies don’t just buy or dispose of expensive equipment in a random or thoughtless fashion, and they shouldn’t do this with their human capital either.

Jim Velos remarked that it seems that larger companies pay attorneys and consultants like me to keep them away from trouble whereas the more entrepreneurial and smaller companies pay attorneys like me to get them out of trouble. In my opinion, the larger companies have just as many problems as the smaller or more entrepreneurial companies. Just look at Mitsubishi, Denny’s and Ford. These companies have policies and procedures, but they weren’t followed and people weren’t trained on them. Thus, they lost a lot of money in legal fees and liability, in addition to damage done to their image.

It’s one thing to have policies and practices in place, it’s another thing to implement and execute them. The U.S. Supreme Court has been clear that the policies must mean something, that is, they must be enforced. Employees must be trained and advised what to do and how to do it. If a company indicates that all harassment and discrimination complaints will be investigated to the fullest extent possible, what does this mean? The company needs to know who will do the investigation, how the accused, the accuser and witnesses will be treated and protected, how confidentiality will be maintained, how the matter will be documented and how other issues will be resolved.

Additional Comments: In my experience, proactive and preventive HR is almost always cheaper and simpler than dealing with these issues after an employee files a complaint with a 3rd party.