Thomas R. Revnew

Name: Askin’ For a Suit

Product: Professional Business Attire

Position Available: Sales Associate

HR Department: Non-Existent

Lawsuits: Imminent

FAILING TO INCLUDE IMPORTANT

PRE-HIRE POLICIES INTHE EMPLOYEE HANDBOOK

Your Handbook should include all company policies related to the hiring process.

What type of policies? Here are the top five:Equal Employment Opportunity Policy;At-Will Employment Policy (Unless unionized);Anti-Harassment Policy;Drug and Alcohol Testing Policy; andBackground Check Policy.

Condition employment on:Truthful & complete application information;Willingness to accept job assignment; andAt-will employment status. Provide applicants and employees with

notice of policies.

FAILING TO ESTABLISH ACCURATE JOB DESCRIPTIONS

Title: Sales Associate

Hours: 40/week

Education: 2 year degree from an accredited university

Skills: Sales experience and a good attitude

Position Description: The Sales Associate will sell clothing to our customers.

Accurate, complete and consistent job descriptions provide a baseline defense for discrimination claims. Inaccurate and incomplete descriptions invite complaints, claims and lawsuits.

The Hiring Manager/Supervisor should establish qualifications for a specific job opening. These qualifications will set expectations from the

beginning. HR should carefully analyze each job description

(keeping in mind the duty to accommodate).

ASKING INAPPROPRIATE INTERVIEW QUESTIONS*

(*OR WHEN THE HIRING MANAGER/SUPERVISOR DOES THE ASKING)

Work History Imma has 20 years of experience as a Sales

Associate selling high-end fashion in a retail store;

Imma speaks multiple languages; and

Imma has numerous references.

The hiring manager has called Imma for an interview because she looks great on paper, but . . .

If we do not hire Imma, she may claim it is because of her:Gender;Age;Disability;Religious beliefs.

•Aren’t you too old for this job?

•Are you disabled in any way, shape or form?

•Have you ever been arrested?•Do you have children?

Questions NOT to

ask:

•Are you a U.S. citizen or an alien who is legally permitted to work in the U.S.?

•Can you perform the essential functions of the job with or without accommodation?

•Can you work the hours required for this position?

Questions you

SHOULD ask:

Abercrombie & Fitch: Failure/Refusal to hire based on race and national origin=$50 Million Awarded.

Voices of America: Failure/Refusal to hire or promote women=$543 Million Settlement.

Winn-Dixie: Failure/Refusal to hire or promote women=$33 Million Settlement.

INAPPROPRIATELY CONDUCTING

PRE-EMPLOYMENT SCREENING

You require Imma to get a medical evaluation:Before offering her a position;The hiring manager tells Imma it is because of

her SAD; andNo other employee or applicant in the history

of the company has ever been required to undergo a medical evaluation.

Minnesota law requires that an employer must do the following before requiring an applicant to undergo medical testing: Provide a conditional offer of employment;Test only for essential job related abilities; andTest all persons conditionally offered

employment for the same position.

You run the following background checks on ImmaYou “investigate” her employment history; The Hiring Manager calls her “references”;You hire a third-party to run a credit report;

and You check her criminal/civil litigation history.

Fair Credit Reporting Act (FCRA): All pre-employment reports by third parties are probably

covered by FCRA. Four basic compliance steps under FCRA:

Disclosure & written consent; Certification to Consumer Reporting Agency; Provide documents prior to adverse action; andProvide notice after adverse action.Minnesota Access to Consumer Report Act

Must notify applicant in writing if subject of consumer report by agency;

Include a box on disclosure form to indicate request for copy; and

If screening, must include disclosure & box on application form.

USPS: Asking inappropriate medical history questions to disabled veterans=$95 Million Settlement.

Lawrence Berkley: Pre-employment blood test=$2.2 Million Settlement.

First Transit and First Student: FRCA violation for conducting unauthorized background checks=$43 Million Settlement.

FLSA VIOLATIONS

Terms of EmploymentSalary of $41,600.00 to work at least 40

hours/week (approximately $20/hour or $800.00/week);

Because Imma is paid a salary, Askin’ for a Suit concludes that she does not need to be paid overtime; and

To be safe, Askin’ for a Suit requires Imma to sign an Agreement stating that she is not entitled to overtime.

Requirements for Overtime Exemption: To be exempt from paying overtime under the FLSA, generally a position must satisfy the following requirements:

Pay more than $455.00/week ($23,660/year);Paid on a salary basis; andPerforms exempt job duties.

It does not matter that Imma signed an Agreement.

(1) Executive Exemption; (2) Professional Exemption; (3) Administrative Duty Exemption;(4) Outside Sales Exemption; and(5) Computer Employee Exemption.

Outside Sales ExemptionPrimary duty must be making sales or obtaining

orders or contracts for services for the use of facilities for which a consideration will be paid for by the client or customer; and

The employee must be customarily and regularly engaged away from the employer’s place or places of business.

Wells Fargo: improper classification as Computer Analysts=$12.5 Million Settlement.

Auto Club: misclassification of insurance sales persons as “outside sales” representatives=$19.5 Million Settlement.

Family Dollar Stores: improper classification of employees as managers=$35.5 Million Award.

NOT IMPLEMENTING A SOCIAL MEDIA POLICY

Imma

-Founder of the Religion of Imma-Immaism

Immas

My job at Askin’ for a Suit stinks. I hate my boss. I would like to slap her silly.

Imma

All followers of Imma, I had a premonition=our god has instructed us to

take communion (i.e. drink an entire bottle of wine). Praise be to God!

Askin’ for a Suit doesn’t have a social media policy and Imma’s manager uses this information as the sole basis to terminate her employment.

During the termination “meeting”, Imma’s manager tells her she is being fired because of the content of her Facebook page.

“Mere Gripes” are not protected.The National Labor Relation Board will likely protect

charges where the Charging Party relied on social media to:(1) act with or by the authority of other employees; (2) initiate, induce or prepare for concerted group

action; or (3) bring group complaints to management’s attention.

Stored Communications Act requires that employers have permission to access private social media pages.

Cannot discriminate based upon religion.

American Medical Response: employee terminated for stating concerns about boss on Facebook=Confidential Settlement .

Hillstone Restaurant: management reviewed a private, password-protected, invitation-only group the servers had created on MySpace=Confidential Settlement.

IGNORING ANDFAILING TO DOCUMENT PERFORMANCE ISSUES

A written record of verbal and written warnings. Clearly explain specific problems, tied to production

or standards. Give employee notice of the standards and apply the

standards consistently. Before termination, consider:

Discipline short of discharge.Reassignment, transfer or removal of duties.Resignation in lieu of termination. Issue a last chance warning. Whatever the issue, document, document,

document (and apply your policies consistently).

An excellent tool for managers! Include items such as:

Does the employee know the rule? Is the rule reasonable? Did you interview other employees and/or third parties (if

necessary)? Are your notes accurate? Did you confront the employee (and, if so, did you

document the conversation)? Have you disciplined (or not disciplined) others in the same

way for the same behavior? Did you discuss the discipline with HR prior to issuing the

warning? Did you send the paperwork to HR?

NOT TRAINING MANAGERS ON PROPER TERMINATION

PROCEDURES

At-will employment means the employer or employee can terminate the employment

relationship for any lawful reason.

Contract Theories Oral or Implied Contract; and Employee Handbooks.

Tort Theories Intentional/Negligent Infliction of Emotional Distress; Tortuous Interference with Contract; Defamation; and Negligent Supervision, Hiring and Retention.

Statutory Wrongful Termination Violation of Public Policy (i.e. MHRA, Title VII, etc.); Whistleblower; and Retaliation.

An excellent tool for managers! Include items such as: Manager and HR in termination meeting. Retrieve company property (keys, swipe card,

laptops, passwords). Eliminate remote access, cut off email and voicemail. Cancel any company credit cards. Notify appropriate people (employees, customers,

clients, etc.). Review benefits (COBRA notice). Last paycheck.

NOT FOLLOWING PROPER POST-TERMINATION

PROCEDURES

Last Paycheck: In Minnesota, an employee’s last paycheck must be issued with 24 hours (upon demand).

Reference Checks: generally an employer may provide the following information about an employee or ex-employee without liability: dates of employment, pay history, job description/duties, training and education provided by the employer and facts related to acts of violence, theft , harassment, illegal conduct.

COBRA Paperwork: Employer must notify plan administrator within 30 days after termination (plan administrator has 14 days from date of notice of the qualifying event to notify each participant and beneficiary of the right to elect coverage).

Thomas R. Revnew | (952)921-4622 | trevnew@seatonlaw.com