Hiring and Firing

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Frances Kulka Browne, Lauren Reiter Brody

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“A tremendously valuable resource for employment law practices and human resources in entities of all types.” – Legal Information Alert

The hiring and firing of employees is an area fraught with legal peril. This timely, comprehensive guide helps you minimize risk at every stage, from advertising a job opening and screening applicants through termination and exit procedures.

When does asking about an applicant's background violate civil rights law? When can failure to ask certain questions lead to liability for “negligent hiring”? What are the notice requirements when laying off employees? Hiring and Firing addresses these questions and many more. Topics include: laws regulating advertising and recruiting; employment applications; the pre-employment interview; background checks; pre-employment aptitude and intelligence tests; job offers and rejections; employment agreement clauses; termination for cause; layoffs; voluntary separations; exit interviews; and post-termination benefits.

Throughout, it contains citations to federal, state and local statutes and case law to help you analyze questions no matter where you are located. Packed with legal and practical advice — including a “termination checklist” — this is the first book you should consult when adding staff or downsizing

Book #00697; looseleaf, one volume, approximately 684 pages; published in 2009, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-159-0

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 684
  • ISBN: 978-1-58852-159-0
  • Pub#/SKU#: 697
  • Volume(s): 1

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  • Frances Kulka Browne

Frances Kulka Browne is a partner in Brody & Browne, LLP in New York City. She concentrates her practice in employment law and appellate litigation. Ms. Browne is an adjunct professor of law at Fordham University School of Law. She has also taught law courses at Rutgers University. Ms. Browne earned her undergraduate degree summa cum laude (B.A., 1985) from Lehigh University, where she was elected to Phi Beta Kappa. She earned her law degree cum laude (J.D., 1988) from the University of Pennsylvania School of Law and a graduate degree summa cum laude (M.A., 1995) from Rutgers University. She has spoken and written widely on legal issues and is an associate editor and contributing author of Negotiating and Drafting Contract Boilerplate from ALM Publishing.

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  • Lauren Reiter Brody
  • 1

Lauren Reiter Brody is a partner in Brody & Browne, LLP in New York City. Mrs. Brody's practice focuses on employment as well as commercial matters. She has extensive experience litigating cases in numerous forums, including state and federal trial and appellate courts, and representing parties in arbitrations and mediations. Mrs. Brody received her undergraduate degree, magna cum laude, from the University of Pennsylvania, where she was elected to Phi Beta Kappa, and her law degree from Columbia Law School, where she was a Harlan Fiske Stone Scholar. She has spoken and written widely on legal issues and is an associate editor and contributing author of Negotiating and Drafting Contract Boilerplate from ALM Publishing.

Job Postings and Advertisements

§1.01 Introduction
§1.02 Advertisements as Contractual Obligations
§1.03 Advertising Methods
[1] Printed “Help Wanted” Ads
[2] Internet Advertising
[3] Internal Posting of Open Positions
[4] Word-of-Mouth Recruiting
[5] Use of Employment Agencies and Recruiters
§1.04 Contents of Job Postings and Advertisements
[1] Statements and Disclosures
[2] Title of Position
[3] Duration of Employment
[4] Essential Functions
[5] Qualifications/Experience
§1.05 Affirmative Action Considerations
[1] Generally
[2] Federal Contractors’ Duties Under Executive Order 11246
[3] Voluntary Affirmative Action Plans
§1.06 Issues in Hiring Immigrants
§1.07 Other Issues in Recruitment
[1] Location of the Advertisement
[2] Format of Advertisement or Posting

[3] Assessment of Applications
§1.08 Conclusion
Employment Applications

§2.01 Introduction
§2.02 Instructions
[1] General Instructions
[2] Accommodation for Disabled Applicants
[3] Unsolicited Information
§2.03 Information from the Applicant
§2.04 Experience and Credentials
§2.05 Citizenship
§2.06 National Origin, Race or Color
§2.07 Age
§2.08 Sex
§2.09 Religion
§2.10 Criminal History
[1] Arrest Records
[2] Convictions
§2.11 Military Service
§2.12 Names of Friends or Relatives Already Working for Employer
§2.13 Disclaimers, Certifications, Notices and Disclosures
[1] At-Will Employment Disclaimer
[2] Equal Opportunity Statement
[3] Certification of Truth and Accuracy
[4] Notification and Authorization Consenting to Required Medical Examination and/or Testing for Illegal Drug Use
[5] Notification and Authorization to Conduct a Credit Check or Background Investigation
[6] Notice Regarding Lie Detector Tests


§3.01 Introduction
§3.02 Questions Relating to Race or Color
§3.03 Questions Relating to Religion or Religious Practices
§3.04 Questions Relating to Sex, Pregnancy, Marital Status or Familial Responsibilities
[1] Sex
[2] Pregnancy
[3] Marital Status or Familial Responsibilities
[4] Victims of Domestic Abuse
[5] Sex as a Bona Fide Occupational Qualification of Employment
§3.05 Questions Relating to Sexual Orientation
§3.06 Questions Relating to National Origin
[1] Generally
[2] Citizenship
[3] Legal Work Status
[4] Accent or Linguistic Characteristics
§3.07 Questions Relating to Disability
§3.08 Questions Relating to Age
[1] The Age Discrimination in Employment Act of 1967
[2] State Law
§3.09 Additional Lines of Questioning During the Pre-Employment Interview
[1] Questions Relating to Prior Convictions and Arrests
[2] Questions Relating to Military Service
[3] Questions Relating to Recreational Activities, Memberships or Affiliations
§3.10 Strategies for the Pre-Employment Interview
§3.11 Conclusion

Background Checks and Other Pre-Employment Inquiries

§4.01 Introduction
§4.02 Job References
[1] Providing References
[2] Enacting a Reference Policy
[3] Employer Immunity Statutes
§4.03 Arrests and Convictions
[1] State Laws Regarding Criminal Convictions
[2] State Laws Regarding Criminal Arrests
[3] Title VII and EEOC Regulation
[4] Americans with Disabilities Act
§4.04 Credit Checks
[1] The Fair Credit Reporting Act
[2] The FCRA and Other Federal Law
[3] The FCRA and State Laws
[4] Employer Liability for FCRA Noncompliance
§4.05 Pre-Employment Physical Examinations
[1] Medical Testing Under Federal Law
[2] Medical Testing Under State Law
§4.06 Pre-Employment Drug Testing
[1] Drug Testing Under Federal Law
[2] Drug Testing Under State Law
§4.07 Pre-Employment Genetic Testing
§4.08 Pre-employment Psychological Testing
[1] Lie Detector Tests
[2] Psychological Profiles
[3] Aptitude Tests
§4.09 Employer Negligence Liability
§4.10 Conclusion

Pre-Employment Examinations

§5.01 Introduction
§5.02 Historical Perspective on Pre-Hiring Examinations
§5.03 Disparate Treatment
§5.04 Disparate Impact
[1] Generally
[2] Prima Facie Showing
[3] Defending an Examination
[4] Alternative Examinations that Do Not Disparately Impact
§5.05 Civil Service Examinations
[1] Generally
[2] Brief History
[3] Federal Qualification Standards
[4] Challenges to Civil Service Examinations
§5.06 Practical Tips
[1] Generally
[2] Test Selection
[3] Saving a Flawed Test
§5.07 Conclusion

Job Offers and Rejections

§6.01 Introduction
§6.02 Types of Employment Offers
[1] At-Will Offers
[2] Durational Offers
[3] Conditional Offers
[4] Lifetime or Permanent Offers
§6.03 Extending Employment Offers
[1] Oral Offers
[2] Written Offers
§6.04 Withdrawing Employment Offers
[1] Generally
[2] Claims Arising Out of Revocation of At-Will Employment Offers
§6.05 Rejecting Applicants
[1] Generally
[2] Potential Claims For Failure or Refusal to Hire
[3] Legitimate Reasons for Failure to Hire
[4] Remedies for Hiring Discrimination
§6.06 Communicating Offers and Rejections
[1] Communicating the Offer
[2] Contents of the Offer Letter—What to Include and What to Avoid
[3] Withdrawing an Offer
[4] Rejecting Applicants
§6.07 Recordkeeping Requirements
§6.08 Conclusion

Employment Agreements

§7.01 Introduction
§7.02 Formation of an Employment Agreement
[1] Oral vs. Written Contracts
[2] Express vs. Implied Contracts
§7.03 Life of the Contract
[1] Duration of the Contract
[2] Modification of Contract
[3] Termination of Contract
[4] Renewal of Contract Term
§7.04 Terms and Conditions of Employment
[1] Job Duties and Positions
[2] Location
[3] Working Hours and Conditions
[4] Compensation
[5] Confidential Information and Trade Secrets
[6] Non-Competition
[7] Inventions and Work-for-Hire
[8] Moonlighting
[9] Arbitration
[10] Notices of Claim Against the Employer
[11] Termination of Employment
§7.05 Conclusion

Termination for Cause

§8.01  Introduction
§8.02 Distinction Between “At Will” and “For Cause”
[1] Express Agreement to Alter the At-Will Relationship
[2] Judicially-Created Exceptions to At-Will Doctrine
[3] Statutory Exceptions to At-Will Doctrine
§ 8.03 Definition of “Cause”
§8.04 Cause for Termination, Generally
§8.05 Poor Performance and Incompetence
§8.06 Insubordination
§8.07 Violation of Company Policy
§8.08 Discrimination, Harassment and Other Civil Rights Violations
[1] Discipline and Termination as an Affirmative Defense for an Employer
[2] Potential Causes of Action by Alleged Harassers
§8.09 Substance Addictions and Abuse
[1] Permissible Terminations
[2] Restrictions on an Employer’s Right to Terminate
§8.10 Absenteeism and Tardiness
[1] FMLA Leave
[2] Disability Leave
[3] Leave For Military Service, Jury Duty and Voting
§8.11 Job Abandonment
§8.12 Criminal Acts
[1] Arrests
[2] Convictions
§8.13 Workplace Violence
§8.14 Breach of Duty of Loyalty Owed to Employer
§8.15 Use and Misuse of Social Networking Web Sites
§8.16 Creating and Implementing Policies on At-Will Employment and Job Termination
[1] At-Will Disclaimers in Hiring Documents and Handbooks
[2] Policies Regarding Termination of Employment
[3] Consistent Application of Policies and Standards
[4] Documentation of Termination Decisions
[5] Importance of Consistent Explanations by Employer
[6] Timing Issues
§8.17 Conclusion

Reductions in Force and Mass Layoffs

§9.01 Introduction
§9.02 Voluntary Separation Programs
§9.03 Worker Adjustment and Retraining Notification Act
[1] Generally
[2] Covered Employers
[3] Affected Employees
[4] What Notice is Required
[5]  Triggering Events
[6] Remedies for WARN Violations
[7] Employer Defenses
[8] Procedural Issues
§9.04 The Older Worker Benefits Protection Act
[1] Generally
[2] Timing
[3] Group Terminations
[4] Rights That Can Be Waived
[5] Tender-Back Provisions and Other Waiver Constraints
§9.05 Challenges to RIFs
[1] Generally
[2] Discrimination Actions
[3] Other Actions
§9.06 Planning the RIF to Avoid Litigation
[1] The Business Rationale
[2] The Selection Process
[3] Review of the Results of the Selection Process
[4] Communicating the Decision to Employees
§9.07 Conclusion

Separation Agreements and Releases

§10.01 Introduction
§10.02 Reasons to Seek a Release
§10.03 Form of Separation Agreement and Release
§10.04 Elements of a Release
[1] Payment or Other Consideration
[2] Waiver and Release of Claims
§10.05 Other Elements of Separation Agreements
[1] Preamble and Recitals
[2] Choice of Forum and Choice of Law
[3] Confidentiality
[4] Nondisparagement
[5] Cooperation
[6] Return of Company Property
[7] No Reemployment
[8] No Admission of Wrongdoing
[9] Expiration of Employer’s Offer to Pay Severance
[10] Merger Clause; No Oral Modifications
§10.06 Conclusion

Exit Procedures and Post-Termination Issues

§11.01 Introduction
§11.02 Communications with the Discharged Employee
[1] Termination Meeting
[2] Written Notice of Benefits, Change in Employment Status and Service Letters
§11.03 Payment of Compensation
[1] Final Wages
[2] Vacation Pay
[3] Bonuses
[4] Commissions
§11.04 Wage Assignments and Deductions
[1] Minimum Wage Requirements
[2] Employer-Employee Agreements
[3] Lost or Damaged Property
§11.05 Exit Interviews
§11.06 Protecting Confidential Information and Security Issues
§11.07 Post-Termination Issues
[1] Advising Others of the Termination
[2] Outplacement Assistance
[3] Claims for Unemployment Compensation Benefits
[4] Access to Personnel Files

Employee Benefits

§12.01 Introduction
§12.02  Employee Retirement Income Security Act (“ERISA”)
[1] Generally
[2] Employee Benefit Plans
[3] Section 510 of ERISA and Termination of Employment
[4] Remedies Under ERISA
[5] Procedural Considerations
§12.03  Consolidated Omnibus Budget Reconciliation Act (“COBRA”)
[1] Generally
[2] Employee Benefit Plans Considered Group Health Plans Under COBRA
[3] Covered Employers
[4] Qualified Beneficiaries
[5] Qualifying Events
[6] The Gross Misconduct Exception
[7] Continued Coverage Under COBRA
[8] What Notice is Required
[9] Penalties and Remedies for COBRA Violations
§12.04 Federal and State Unemployment Compensation Benefits
[1] Generally
[2] Covered Employers
[3] Covered Employees
[4] Claims Determination and Procedure
[5] Termination for Misconduct
[6] Employee Resignation
[7] Severance Pay
[8] Wages in Lieu of Notice
[9] Employer Experience Rating: Effect of Terminations on Premiums Paid by Employers
§12.05 Conclusion