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Top 10 Administrative Pitfalls in Dealing With Employees

October 1, 2003
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Knowing the ins and outs-and risks-of employment law BY VICTORIA L. DONATI AND HOWARD L. BERNSTEIN
Top 10 Administrative Pitfalls in Dealing With Employees

Employment law protects employees-and poses risks for management

BY VICTORIA L. DONATI AND HOWARD L. BERNSTEIN Nursing home administrators wear many hats. In addition to the daily tasks of attracting and keeping (comfortable and well-cared-for) residents, they also are employers. With all of these responsibilities, it is little wonder that certain nuances of employment law sometimes slip through the cracks. This does not have to be the case-many violations can be avoided with a little forethought. What follows is advice for avoiding 10 of the most common mistakes we see administrators make regarding their employment practices. 1 Using improper interview questions. Hiring is often left to department heads or others who know little about the laws that regulate workplace interviews. Questions as innocent as "What does your father do?" or "When did you graduate from high school?" -whether in an interview or on an employment application-can spawn a "failure to hire" claim.

Rather than open the door for such costly litigation, take control of the hiring process. Review each form used in the hiring process (from applications to interview evaluations) to ensure that there are no unlawful questions. Train interviewers in the niceties and details of conducting meaningful and legal interviews. The best way to ensure that an interview question is proper is to confirm that it only seeks information relevant to the candidate's job-related qualifications. Questions that stray from this basic mission are much more likely to be unlawful.

2 Dropping the ball on employee background checks. Nursing homes have long been scrutinized, both by public agencies and concerned families, to ensure that management knows who is working at the facility and that none of its employees has a sordid past. While many administrators are diligent about conducting pre-employment background checks, they often fail to take all the necessary steps to bring the background check into compliance with applicable law.

The law controls these background checks in two respects: First, the information obtained must be "legally useful." In other words, it must be information that the law permits the home to rely upon in making an employment decision. Most states prohibit employers from relying upon an applicant's arrest record, and some even limit the types of conviction information that can be used. Other laws prohibit employers from freely using information about bankruptcies, wage garnishments, or other legal liabilities. State by state, home by home, it is critical to know what is and is not a lawful basis for rejecting an applicant with a past.

Second, the information must have been lawfully obtained. If an outside agency conducts the background check, the Fair Credit Reporting Act (FCRA) requires the nursing home to provide, among other things, a specific written notice to the applicant advising that the background check is being conducted by the third party, that it will entail personal interviews (if applicable), and that it will be considered as part of the employment decision. The FCRA also requires that the applicant be given a copy of any report generated and of his/her rights under applicable law, as well as an opportunity to challenge or respond to the information gathered.

Many state laws echo and further expand these requirements. Therefore, administrators must review background check procedures periodically. Ensure that procedures and use of the information, by both the facility and any outside agency used, are up to date and lawful.

3 Failing to recognize requests for "protected" leave time. An employee's request for time off may be protected by federal or state law. The employee does not have to identify or reference the law that protects the time off to gain the law's protection. The question, then, is whether the administrator will recognize a request for protected time off. Say, for example, that an employee calls in sick on Wednesday, Friday, and Saturday, saying that she is not feeling well. Do you know that those three missed days may count as leave time protected by the federal Family and Medical Leave Act (FMLA), with its attendant job protections, even if the employee doesn't ask for FMLA leave? Most administrators do not, and proceed to take (or allow a supervisor to take) adverse action against that employee without realizing that the adverse action may well serve as the basis for a wrongful or retaliatory discharge claim.

To avoid this potential liability, review and understand the terms and requirements of your facility's FMLA and other leave policies. (If you have no such policies, ask whether they may be necessary and, if so, follow through with appropriate development and implementation.) Make certain that every supervisor in the facility also reviews and understands those policies and the types of requests that may trigger a protected leave.

4 Ignoring the harassment-claim antidote. Many nursing homes have felt the sting of harassment allegations-employees claiming that they were subjected to crude language, derogatory nicknames, or demeaning slurs. Many homes have even found themselves battling litigation based on such claims. Only a few, however, have taken the time and expended the resources necessary to truly prepare themselves for such battle and to avail themselves of the "out" that the law provides.

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