You be the Judge

In a Green Industry Expo (GIE) session titled, "Hire the Best, Fire the Rest and Stay out of Court," moderator Hunter Lott, Encore Information Network, addressed the legality of a variety of employment issues. As an attempt to test GIE attendees on their employment law knowledge, he offered the following quiz. Determine whether the following actions are safe or risky, and see how you score based on the correct answers below:

QUESTIONS:
1) Firing bad employees regardless of race, sex, religion, age, national origin or disability. (Safe or Risky?)

2) A three-day disciplinary suspension, without pay, of an exempt employee. (Safe or Risky?)

3) Having a company policy statement against sexual harassment in the employee handbook. (Safe or Risky?)

4) Asking "U.S. Citizen" on an application. (Safe or Risky?)

5) Screening for drugs. (Safe or Risky?)

6) "Testing out" a new employee with a probationary period. (Safe or Risky?)

7) Rejecting an applicant for "bad attitude." (Safe or Risky?)

ANSWERS:

1) Safe…This list is all-inclusive. There's no one left to fire. The critical issue here is documentation. Can you prove you gave the employee a reasonable chance to save his/her job?

2) Risky…Wait a minute! When did this change? 1938! One of the hottest employment practices issues is wage and hour. An exempt employee can only be docked for a workweek in cases of disciplinary suspension. Get up to speed by reviewing the Fair Labor Standards Act (www.dol.gov).

3) Safe…Without a company policy against sexual harassment, we place the company in a position of being in favor of sexual harassment at work.

4) Risky…With a few exceptions, a company can only verify an employee's right to work in the U.S. after the offer has been made and accepted. Document the right to work with an I-9 form.

5) Safe…Check with local legal counsel before starting your own testing program.

6) Risky…No need for a probationary period unless you have a union or government operation. At best, it weakens our right to fire at-will. At worst, it eliminates our right to fire at-will. Want to put employees on probation forever? Keep your at-will statement and get rid of the probationary, orientation or introductory period. This does not mean that I use "at-will" very often, but I want the right to do so.

7) Safe…Great news. If they are miserable and grumpy in the interview, just wait until you put them on payroll. You can hire and fire for "attitude." Attitude, however, is not measurable. Turn attitude into behavior. Document behavior. Hire and fire for BEHAVIOR.

The author is president and chief executive officer, Encore Information Network, Lawrence, Kan.