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Most HR Failures Come from Ignoring the Basics

by Steve Bruce

There are dozens of picky technical ways to run afoul of employment laws, but more often than not it’s the most fundamental failures that get employers in trouble, say attorneys John K. Skousen and Christopher J. Boman.  Skousen and Boman are partners at the Irvine, Calif. office of employment law firm Fisher & Phillips LLP.

Unfortunately, Skousen says, employers have the money and the power, so there’s an automatic bias towards them. That means you must make sure every policy is followed through consistently and that everything is properly documented.  “Above all, company leaders must look reasonable and fair,” he adds.

Here are their tips for staying out of the courtroom and creating fair work environments in 8 basic areas:

Employee Handbooks

Without an employee handbook, it’s difficult to prove a policy was in place and understood by the staff, say Skousen and Boman.  Some items absolutely have to be included, such as meal and rest periods, to ensure employees are aware of the rules and expectations.

Job Applications

Many companies don’t require applications and instead opt for résumé submissions, but that’s a mistake, say Skousen and Boman, because résumés are advocacy pieces.  With a well-drafted application, employers elicit “just the facts.”

In addition, applications allow employers to obtain approval to conduct various background checks.  It’s also important that employers obtain a signature and affirmation from the applicant confirming that the information is accurate and complete.  Doing so may provide grounds for termination if applicants misrepresent themselves.

Employers should ensure that the information submitted by the applicant is verified, consistently conducting background checks for every applicant to ensure discrimination claims are avoided.

Applications are often outdated, asking questions that could trigger liability for employers, say Skousen and Boman.  For example, if a high school diploma is an essential qualification for a position, in order to avoid a possible age discrimination claim, employers should ask candidates whether or not they graduated from high school instead of asking when they graduated.

Finally, employment applications and a well-executed pre-hire due diligence program will help prevent and defend against claims for negligent hiring and negligent retention.

Arbitration Agreements

Boman and Skousen recommend employers utilize a binding arbitration agreement as part of their employee handbook and personnel policies.  Furthermore, they say, arbitration agreements are necessary for all candidates, not just those that are actually hired at the company.

Including an arbitration provision in all job applications ensures that those who are not hired by the company will have to arbitrate claims for “failure to hire.”

While some states like California require the employer to pay for the arbitration, it remains a smart strategy for companies and could save substantial sums in some instances, say Skousen and Boman.

Performance Evaluations

It’s no secret that today’s reduced workforce has created packed daily schedules for both employees and their supervisors.  As a result, many performance evaluations don’t take place on their scheduled dates.  But if employers don’t conduct performance reviews when they’re supposed to—or if they’re skipped altogether—that creates problems.  It will be difficult to terminate problem employees when there’s a lack of notice regarding issues that need to be improved, or if there are inconsistent patterns of providing performance evaluations (which could be perceived as a bias).


One of the biggest mistakes employers make is waiting to involve legal counsel until after an employee has already been terminated, say Skousen and Boman.  Sometimes it may just be a five-minute phone call to the qualified legal expert that saves the company from a lawsuit.

Employers should document the reasons for the employee’s termination.  If the employer simple states “at will employment,” employees can state whatever unlawful reason they want.

– end of article


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