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I Know a Guy: Legal Challenges from Bad Hiring Practices – Mary T. O’Sullivan

By Mary T. O’Sullivan, MSOL

“Hiring is the most important people function you have, and most of us aren’t as good at it as we think.” – Laszlo Bock

If you’re familiar with the adage, “I know a guy”, you might also know that a lot of local hiring practices are based on “who you know”. With so many people out of work, it may be tempting to grease the skids for a person we know, even relatives and good friends, even when they aren’t qualified to do the job. In the case you are about to read, after many years of service at a local company, new management came in and made some big changes. Changes which could have cost this employee his job, but instead, put his employer at risk for legal action. Here is a notional internal memo which demonstrates what happens at the HR level when such hiring mistakes are made.

It has come to my attention that Howard Humble, a 10-year employee, has retained legal counsel as a result of his recent termination. In reviewing this case, several facts present themselves as grounds for legal action based against our company based on Title VII and the EEOC. In order to better prepare ourselves against future litigation, and to make senior leadership aware of the events regarding Mr. Humble’s circumstance, I recommend we examine this case from an HR perspective, as court cases are extremely time consuming and costly to all involved, regardless of which party prevails. 

Additionally, the behavior of Humble’s two supervisors seems to emerge as the root cause for Humble’s action against the company. While Randy Dufus, the first supervisor, is no longer with us, Ellen Enthusiastic, the current manager, should be held accountable for her actions in this case.

For example, it seems Mr. Humble’s recruiting process did not follow legal guidelines. Word of Mouth recruiting, (Randy Dufus phoned Humble, a personal friend, to inform him of the posting) does not always yield a diverse workforce or the best candidates. Therefore  our company, in the absence of a vigorous recruiting process is now vulnerable for a potential legal action based on potential age, gender and/or race discrimination. (Walsh, 2010)  Moreover, Reference (a) states that Humble’s interview, conducted by Dufus, was not focused specifically on the job responsibilities or the company’s goals, objectives, vision, and values. Instead, the record shows that Mr. Dufus discussed the job responsibilities among casual banter about college days and mutual acquaintances.  In addition, during the interview, Dufus  seems to have committed fraud in his promise of lifetime employment to Mr. Humble, as lifetime employment could be construed as false representation of a material fact. (Walsh, 2010) Few at our company plan, and none promised, lifetime employment, as Dufus himself left the company for a better opportunity.

Moreover, Mr. Humble’s performance reviews are also at issue. Although employers have no legal obligation to conduct performance reviews, annual reviews are documentation of an employee’s performance and development needs, and should be conducted in a professional manner. (Walsh, 2010)  However, Humble’s performance reviews were conducted in a bar over beer. No job specific discussions occurred; rather the meetings were almost strictly social. Humble also used these opportunities to reveal to Dufus personal information about his depression, and his unhappy marriage which eventually led to his request for a FMLA leave of absence.  In addition, under Dufus, his ratings were consistently “outstanding” and are on file with HR. This leaves us once again at risk for legal action since Ms. Enthusiastic, the new manager, presented Humble with poor performance reviews within a month of his return from his leave of absence.

In light of the outcome of Big Red Defense Company versus Hernandez, published company policies for disciplinary measures should be put in place immediately. It is of significance to note that without a published progressive disciplinary policy, we may be subject to claims based on many of the issues Mr. Humble experienced while in our employ.

In the above-mentioned case, Hernandez claimed that his workplace misconduct dismissal was based on his disability (drug and alcohol addiction), and he prevailed in the lower courts using ADA as the basis of his case. However, the US Supreme Court found for the employer, based on the company’s published policy of not rehiring anyone fired for workplace misconduct. Therefore, without a published policy, our company may be unable to withstand a legal challenge regarding disciplinary actions.

We all know this kind of hiring goes on every day in many places, especially southern New England. However, who is thinking about the consequences to the employee and the company, especially once the hiring manager is long gone. New people come in, see the mistake, try to correct it, and end up risking a costly and lengthy court case.

Every manager and business owner needs to keep in mind the three most important elements of hiring and talent management:

1.Word of Mouth hiring is the worst way to attract a talented candidate pool. You may push your relative for the job but is he or she the best person for the company?

2. Interviewing must focus on the specific job responsibilities to ensure the candidate is qualified and perform the duties of the position. Fudging the interview only leads to a heavier load on other employees who must pick up the slack. When new management takes over, the gaps are exposed.

3. Employees can’t be let go after returning from FMLA leave. This practice is a violation of Title VII of the Civil Rights Act of 1964 and the EEOC. Doing so once again exposes your company to legal action.

“Hiring the wrong people is the fastest way to undermine a sustainable business.” Kevin J. Donaldson

Connect with Mary:

Mary T. O’Sullivan, MSOL – 401-742-1965

mary@encoreexecutivecoaching.com

www.encoreexecutivecoaching.com

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Mary T. O’Sullivan, Master of Science, Organizational Leadership, International Coaching Federation Professional Certified Coach, Society of Human Resource Management, “Senior Certified Professional. Graduate Certificate in Executive and Professional Career Coaching, University of Texas at Dallas.

Member, Beta Gamma Sigma, the International Honor Society.

Advanced Studies in Education from Montclair University, SUNY Oswego and Syracuse University.

Mary is also a certified Six Sigma Specialist, Contract Specialist, IPT Leader and holds a Certificate in Essentials of Human Resource Management from SHRM.