Full Description

Few managers dread any task more than the hiring and firing of employees. The hiring process is long and full of unknowns, while the firing process adds layers of personal emotions to an already highly-charged situation. The Complete Hiring and Firing Handbook shows you how to take these difficult decisions and turn them into profitable and positive endeavors.

State-by-State Resources
Quick access to essential state agency’ contact information on employment security and new hire reporting is at your fingertips.

Recruitment Tools
Find better employees with job descriptions and applications that identify the worker you want.

Employee Handbook
Keep employment related problems to a minimum by crafting the perfect employee handbook to guide both employees and supervisors.

Filing Tips
See exactly what you need to do to fulfill your duties to the IRS and under FMLA, COBRA and HIPAA.

Red Flag Alerts
Stay out of trouble by providing the proper notices and forms—on time and to the right people.

Covers In Detail
HIRING
Evaluating the pros and cons of hiring
Avoiding discrimination claims
Recruiting
Spotting résumé fraud
Conducting interviews
Performing background checks
Making offers and sending rejections
Processing new hires

FIRING
Stating grounds for termination
Honoring protected leave
Stopping retaliation
Preventing wrongful
discharge claims
Giving notice
Providing severance
Giving references
Enforcing noncompete
agreements

Table of Contents

Introduction -

PART I—HIRING

Chapter 1: To Hire or Not to Hire
Staying Small
Alternatives to Hiring

Chapter 2: Eligibility for Employment
Child Labor
Foreign Workers
Relatives
Former Employees
Volunteers
Competitor’s Employees
Other Restrictions

Chapter 3: Discrimination -
Adverse Action
Disparate Treatment and Disparate Impact
Covered Employers
Counting Employees
Foreign Employment

Chapter 4: Specific Types of Discrimination -
Religion
Sex
Pregnancy, Childbirth, and Related Conditions
Age
Disability
Military and Veteran Status
Union Membership
Sexual Orientation
Genetics
Reverse Discrimination
Testers and Salts

Chapter 5: Procedures and Remedies for Discrimination
Filing a Charge
Processing a Charge
Available Remedies

Chapter 6: Job Description -
Contents of Description
Sample Job Description
Describing Duties

Chapter 7: Recruiting -
Classified Ads
Referral Bonuses

Chapter 8: Résumés and Résumé Fraud
Third-Party Liability
Remedies for Résumé Fraud

Chapter 9: Applications -
Sample Employment Application
Background Checks
Prescribed Summary of Consumer Rights

Chapter 10: Interviews
Disability-Related Questions
Open-Ended Questions
Employer Misrepresentations
Testing
Offers and Rejections
Sample Offer Letter

Chapter 11: Contracts of Employment
At-Will and Contract Employees
Employee Handbooks

Chapter 12: Noncompete and Other Agreements
Noncompete Agreements
Nonsolicitation Agreements
Confidentiality Agreements
Intellectual Property
Arbitration Agreements

Chapter 13: Requirements Applicable to New Employees
I-9 Requirements
Sample I-9, Employment Eligibility Verification form
New Hire Reports
Tax Withholding
Sample Form W-4
Earned Income Credit
Sample Form W-5
Statutory Employees and Non-Employees
Social Security Number Verification
Benefit Plan Participation
Training

PART II—FIRING

Chapter 14: The Decision-Making Process
Grounds for Termination
Progressive Discipline
Contractual Restrictions
Termination Procedure

Chapter 15: Voluntary and Involuntary Termination
Constructive Discharge

Chapter 16: Layoffs
Reductions-in-Force and Mass Layoffs

Chapter 17: Protected Status
Family and Medical Leave
Sample Request for Family or Medical Leave
Sample Certification of Health Provider
Military Leave
Jury Duty

Chapter 18: Retaliation
Employee Benefits
Whistleblowing
Financial Difficulties
Sarbanes-Oxley
Work-Related Injuries and Illnesses
Former Employees

Chapter 19: Strikes and Concerted Activities -
Replacing Striking Employees
Partial Strikes
Safety-Related Work Stoppages

Chapter 20: Wrongful Discharge

Chapter 21: The Firing Process
Giving Notice
Exit Strategies
Defamation
Additional Steps

Chapter 22: Final Pay and Continued Benefits
Final Pay
Health Insurance Continuation
Model COBRA Continuation Coverage Election Notice
Health Insurance Portability
Sample HIPAA Certificate of Coverage
Retirement Plans

Chapter 23: Severance Packages and Releases
Contents of Release
Taxability of Severance Payments

Chapter 24: References
Privilege
Compelled Self-Publication
Discrimination against Former Employees

Chapter 25: Enforcing Restrictive Covenants

Chapter 26: Unemployment Insurance
Misconduct and Quitting without Good Cause
Strikes
Claim Procedure
Trade Adjustment Assistance

Conclusion

Glossary

Appendix A: State Employment Security Agencies

Appendix B: Outline of Employee Handbook -

Appendix C: State New Hire Reporting Agencies

Index

About the Author

Excerpt

How Do You Write a Good Job Description?

Excerpted from Complete Hiring and Firing Kit by Charles H. Fleischer ©2005

Once the decision to hire has been made, the employer’s very next step should be to prepare or update a job description. An accurate and complete written description of the job to be filled is an invaluable tool for many reasons. Some of the most important reasons are the following.

? It helps identify the skills and qualifications the employer should be looking for in a candidate.

? It provides a convenient reference for recruiting. It assures that all potential candidates receive the same information about the job.

? It provides a basis for determining whether the position is exempt or nonexempt under the federal Fair Labor Standards Act and state wage-and-hour laws.

? It informs candidates what will be expected of them if hired and it demonstrates to candidates that the employer is organized, businesslike, and professional.

? It provides a standard against which candidates can be compared with each other.

? It provides a standard against which a candidate, once hired and on the job, can be evaluated.

? It helps employers establish fair compensation ranges for various jobs.

? It provides powerful ammunition in defending later discrimination claims by identifying essential job functions before any candidates are considered.

This last point merits emphasis. In cases of disability discrimination, for example, the ADA requires courts to consider the employer’s judgment as to what functions of a job are essential. Consequently, courts generally will not second-guess the employer’s judgment, as long as functions identified as essential are job-related, uniformly enforced, and consistent with business necessity.

On the other hand, if the employer has not prepared a job description in advance, then the employer is much more vulnerable to a claim of disability discrimination. As the following example shows, courts will likely be skeptical of an after-the-fact employer determination that a particular function is essential and that rejection of a disabled candidate was justified.


Example
The manager at a truck repair shop in Ohio was diagnosed with lung cancer
and took extended leave for surgery and radiation treatment. He
returned to work about a year later, but his breathing remained seriously
compromised. After being back on the job only a short time, the manager
was discharged because, according to his supervisor, he was not physically
fit to do the work. When pressed about this statement, the supervisor
mentioned the need to lift and move batteries and tires weighing 150
pounds. At the time, the manager’s job was mainly supervisory, although
his written job description did mention lifting (min. 50 lbs.).
The manager sued under the ADA and recovered a jury verdict for
$950,000. On appeal, the federal Sixth Circuit Court of Appeals
upheld the verdict, ruling the employer had failed to establish that repetitive
lifting of 50-pound truck batteries and 150-pound truck tires was
part of the job. In fact, according to the evidence, such lifting was relatively
rare, and therefore not an essential function of the job.
U-Haul Co. of Cleveland v. Kunkle, 165 F.3d 29 (6th Cir. 1998)



Contents of Description
A good job description should contain the following elements:

? the title of the position;

? a description of the essential functions of the position—that is, the functions that the employee must be able to perform;

? a description of other functions that, though not essential, are normally or occasionally performed by persons holding the position;

? any skills the employee will need and any equipment or tools the employee will be required to use;

? any unusual aspects of the job, such as substantial overtime required, occasional overseas travel, or security clearance needed;

? a description of where the position falls on the company’s organizational chart—that is, the position to which the employee reports and the positions that report to the employee;

? whether the position is exempt or nonexempt under the federal Fair Labor Standards Act and state wage-and-hour laws; and,

? the date it was prepared or most recently updated.

Job descriptions might also state the method of compensation (salaried, hourly, commission, etc.) and the compensation range. An ending tagline such as and other duties as assigned is fine, so long as those other duties are not considered essential.

Minimum educational or other qualifications are sometimes included in job descriptions, such as bachelor’s degree required or three years’ experience needed.

Unless the employer can show that such qualifications are essential, they pose a danger of being discriminatory. However, if the qualification is essential, it should be stated in the description.

Employers should also keep in mind that jobs change over time. For example, the company’s products and services may evolve, duties may be eliminated or expanded, or technology changes may require new skills. A periodic review and updating of job descriptions is therefore essential.

Describing Duties
A number of companies sell commercially prepared job descriptions. A search for job descriptions on the Internet will return dozens of sites, some of which even provide descriptions for free. Another useful resource is the Dictionary of Occupational Titles, published by the U.S. Department of Labor’s Employment and Training Administration. It is available from the Government Printing Office at http://bookstore.gpo.gov.

While these sources may be a helpful starting point, your job descriptions need to be specifically tailored to your organization. An off-the-shelf description that does not accurately describe what your employee will be doing is worse than no description at all.

A good job description requires job analysis—an in-depth study of the job. The analyst should interview employees who are currently performing the job, perhaps ask them to fill out a questionnaire, observe them at work, and interview other employees and supervisors who interact with the position being analyzed.

A draft description is then circulated to the incumbent and his or her supervisor for comment. At this point, the supervisor may want to suggest that the job be restructured by adding duties that the employee could be expected to perform or by eliminating duties that could be more efficiently performed by others. A final description is then submitted to management for approval.

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