The Way Your Company Writes It's Job Descriptions Can Get You Sued!



Last week on Hire Power Radio Show, Rick Girard sat down with Usama Kahf to discuss the ins and outs of hiring for compliance issues and how to best minimize potential hiring risks when interviewing and building out your company.

Here is what we discussed with Usama Kahf on Hire Power Radio Show:

While there are many hurdles out there, the biggest legal challenges companies have in hiring today boils down to two main issues: when employees don’t disclose the truth during the hiring process and when employees bring over trade secrets from their previous workplace.

When potential employees don’t tell the truth during their interview process, whether they’re hiding things or holding back crucial information that could pertain to their ability to perform the duties of the role, it can cause major issues and put businesses in sticky legal situations. If you don’t find out until it’s too late, you can get either get hit with a lawsuit from that employee when you don’t successfully accommodate their needs or get hit with a lawsuit for “unfairly” firing them for not being able to perform the job.

Understandably, nondisclosure regarding employee disabilities is one of the biggest caseloads and counseling hiring law firms do on a daily basis. Hiring managers and HR directors always ask, “How do we find out about these issues or situations in advance without asking illegal questions during the hiring process? Can we hold someone accountable for not telling us about disabilities upfront?” The answer to the latter question is always no: the law protects workers with disabilities and requires you provide reasonable accommodations as long as it doesn’t seriously impede business.

It’s definitely important to find about any potential disabilities or issues up front, especially because a company can then accommodate new hires and set them up to succeed. But on the same token, those same disabilities could cause a company to discriminate against the interviewee...which can lead to dangerous lawsuits.

So when it comes to disclosure, it’s important to get the information you need from a potential employee a) before you make any hiring or interviewing decisions and b) without breaking any compliance policies and hiring regulations at the state or federal level.

A good way of circumventing this lack of disclosure is to pinpoint the actual duties and responsibilities of a specific job and then ask the interviewee questions as to their ability to perform those tasks. For example, an 8-5 desk job requires transportation to and from work, so does that potential employee have transportation abilities and is there any limitation that would stop them from driving to and from work?

Here’s the tricky part: the law does not require employees to disclose things to you during the hiring process, and employers are not allowed to ask. This is why direct questions about the responsibility of the role and their ability to do it is a good way to get around this issue. It’s “do you require a flexible work schedule to do this job?” rather than “do you have a family and what does your daycare situation look like?”.

The second piece of nondisclosure is when employees don’t disclose a disability and then after you hire them they mention an issue preventing them from doing their job. Unfortunately, if you’ve already hired them, you now you have an obligation to interact with them and help them become successful with the job. With the example of transportation, now you’re obligated to pay for Uber or let them work from home -- whatever it takes to set them up for success.

There’s a sticky part involved in this process as well. If you learn from the employee during the interview process and you don’t hire them, you can have a potential lawsuit UNLESS you can objectively prove you hired someone more qualified for the job. Generally, employees carry the initial burden of proof to show you were discriminatory. Then, the responsibility shifts to you to show you hired someone more qualified not because of disability.

Trade secret issues are the second most common issues of compliance when hiring new employees. When people bring along trade secrets of their former employer and use them in their current role, then you’re on the hook for everything that person stole, even if you weren’t aware it came from their last company.

It’s interesting to point out here, some employees have a certain sense of entitlement when it comes to what they think they own as an individual rather than a worker of their company. They don’t realize that law makes it so anything you create while at work belongs to an employer. It doesn’t matter whether you created it -- they paid you to create it. But most people think, “Well that’s my work product” so they hang onto those ideas. Sometimes that’s as far as it goes, but other times they start using it for the benefit of their employer. A similar issue recently arose at Uber, where a former Google employee went to work at Uber and used documents he created at Waymo, an Alphabet company. Now, the two companies are headed towards a lawsuit.

When people bring over and use these ideas, whether it’s to solicit clients or copying a cost list and charge them less than other company, the only reason you know these trade secrets are because they were at that other company.

In the hiring process, people forget to vet candidates properly, which does nothing to ensure they’re not stealing the trade secrets of their former employer. Once candidates are hired and bring those documents into the fold if the other company finds out they go after YOUR company, not the individual whole stole from them.

This can be prevented far in advance. Prepare in advance interview questions that focus on the job itself. Identify what the individual will be doing on the job and divide that into different skills and types of activities. Then ask them specifically what qualifies them to perform each task and whether there’s anything that would limit their ability to do this?

The job description itself can an employer’s ultimate liability depending on wording. The wish list that most companies include, the “five years experience, Bachelor’s degree in X, Y, Z,” could make people think that even if they qualify for the role. Nevermind whether the person is a culture fit or has a pattern of accomplishment, an applicant can use your own job description against you in court.

If there’s a disability mentioned in the interview process yet the individual thinks he qualifies for the role, he or she could frame it such as the company hired someone else because of their disability. No matter your reasons for not hiring, you could still have a lawsuit on your hands. Hiring managers need to clearly publish both company values and beliefs as well as expectations as to what the job entails and what activities are involved.

Interview Questions Dos and Don’ts

In the interview process, there is a long list of questions you can ask and questions you can’t. To find hidden issues, focus on whether there's’ anything to limit their performance of this task and go down your list.

There are many questions that are illegal but can get the same info by switching the questions around. A lot of questions have to do with legal authorization to work in the united states. You can’t point blank ask, “Are you a US citizen?” That’s illegal. But, you CAN ask what their work authorization is!

Reference checks are also an excellent way to get truthful information about potential new employees They SHOULD be done, and while some companies have a policy against giving out that information, most places have some amount of privilege to share factual information about that person with potential employees.

With these tools, you can minimize the compliance risk of new employees and build a sturdier, longer lasting team for your company.

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Usama Kahf is an attorney at the Irvine office of Fisher Phillips where he practices employment law.  Fisher Phillips is a national firm that only represents employers in all aspects of labor and employment law.  Usama’s focus is on litigation prevention and compliance.  He has a passion for educating business owners and HR directors on how to minimize legal risk and comply with complicated employment laws.  

You can reach out to Kahf at fisherphillips.com and call him directly 949-798-2118 or email him at ukahf@fisherphillips.com .

About Rick Girard

Rick Girard is the Managing Director and Founder of Stride Search, a boutique software talent search firm. While not running a School for Gifted Mutants, he hosts Hire Power and creates valuable content for Hiring Managers and Job Seekers alike to elevate industry standards of exclusive professional search.

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