Spring is in the air and time to review hiring best practices. Stop and smell the flowers. Then review your recruitment advertisements, employment application, interview questions, applicant screen process, offer letter and complete your new hire checklist.

Hiring 101

According to the Secretary of Labor's April news release, hiring is on the rise and we are experiencing "steady, sustained and widespread job growth." From the ad you place seeking applicants to the offer letter you send, hiring can be a minefield for potential exposure. Conversely, the recruitment process provides a perfect opportunity to make a positive first impression on applicants and provides a powerful tool to attract the new hires you seek. Below is a brief overview of recruiting and the employment application. This overview is by no means exhaustive; please do not hesitate to contact us if you have specific questions:

Recruiting:
Newspaper advertisements, brochures and any solicitation must all be:

• Free of duration expectations;
• Replete with disclaimers and acknowledgments, updated periodically;
• Free of language construable as evidence of discrimination based upon a protected class: Race, gender, religion, national origin, etc.;

Interviewing:
All representations made during an interview may be relied upon by applicants and, therefore, are advised:

• Avoid overselling;
• Never use the phrase "permanent employment";
• Mention employee-at-will where appropriate;
• Focus all questions on the applicant's ability to perform job functions;
• Prepare a "does and don'ts" list of what can be discussed.

Background Checks:
There are at least four sources of regulations governing pre-employment investigations:

• Federal Fair Credit Reporting Act and the Massachusetts Fair Credit Law;
• Laws governing particular areas of investigation, including Criminal Offender Records Information Act;
• Equal employment Opportunities laws such as the Americans with Disabilities Act and the Massachusetts Fair Employment Practices Act;
• Privacy laws.

Employment Applications:
Perhaps the most important document in an employment related lawsuit:

• Does the question asked tend to have a disproportionate affect in the screening of any protected class?
• Is the information requested necessary to judge the individuals ability to perform this particular job?
• Are there any alternative non-discriminatory ways to secure the necessary information?
• Do not ask for or accept any photographs.
• If the position applied for does not require a particular level of education, it is not proper to ask questions about the applicant's educational background.
• Questions about the applicant's marital or family status, or gender should be avoided, as should questions about childcare arrangements or the likelihood of pregnancy.

Criminal Convictions:
Massachusetts employers with six or more employees are barred from inquiring about criminal convictions on the application but may inquire about criminal records during the second level of the screen/recruitment process.

Next month we will address the new hire checklist and documentation.

Recent cases of note

Federal Judge: non-compete unenforceable by Massachusetts court
Maine Pointe LLC v Starr, et al
In a rare move by the United States District Court in Massachusetts, a judge rejected a request for injunctive relief where two business parties entered into a seemingly valid non-compete agreement that dictated their disputes be settled in Massachusetts. The court found that there was no evidence of "continuous and systemic activity" by the defendant in Massachusetts. While ruling on the jurisdictional issue, the judge addressed the merits as well (which are typically reserved for state courts), stating the evidence showed Maine Pointe was trying to protect itself from ordinary competition and not trade secrets, confidential information or good will.

The lesson for employers? Don't let the jurisdictional issue take the bite out of a non-compete. Choose a court that actually relates to your business and the individuals to the agreement. The federal district court would not have had the opportunity to rule on this case if the forum selection of Massachusetts was valid.

Leave request cannot be open-ended
Massachusetts Commission Against Discrimination, et al. v. Verizon New England, Inc.
This case addresses several leave issues in favor of the employer. The MCAD found that Verizon did not commit disability discrimination by firing an employee who refused to return to work after being denied an extended leave to accommodate episodic migraines. The employee failed to provide objective medical documentation that she was unable to work and therefore disabled. Moreover, the hearing officer found that indefinite and open-ended leaves of absence are unreasonable accommodations under state law (Ch. 151B). Finally, the Commission held that extended leaves are inappropriate to accommodate episodic conditions.