Reference checks are an essential hiring tool for most employers. Hiring managers often complain about the lack of disclosure they receive in response to their reference requests. And it’s estimated that up to one-third of all resumes contain inaccurate information. One British organization has found their own solution to often-restricted access to information about job applicants.

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In Britain, an employer association has taken some creative steps to address what most be some serious headaches in the reference-check system. The organization is creating a National Staff Dismissal Register that will consist of an encrypted list of high-risk employees, identifying employees who were discharged for dishonesty or for damaging their employer’s property, for example.

Member companies will be able to search the list by name, address, birth date, previous employer and national insurance number. The list is expected to be usable by the end of the month.

Employee and human rights organization advocates worry that employees may find themselves unable to obtain work because, unbeknownst to them, they are on the list because of false accusations or errors, with no way to be certain and no appeal. Employers, on the other hand, look forward to the possibility of reducing losses due to employee theft and negligence.

If they were in Delaware, of course, they might find that such extremes are unnecessary. The full text of the Delaware statute (19 Del. C. Sec. 709) is available on the State of Delaware’s website.

[H/T: Workplace Prof Blog]

More at BBC News

I, for one, am pleased to see a move toward more moderate dress.

There has been silliness on both sides of the continuum. Some years ago, the Delaware Supreme Court, in its infinite wisdom, issued an edict that lawyers appearing before it had to wear white shirts. So much for sartorial creativity.

But if I were seeing a lawyer, I’d feel more confident if he or she were wearing a white shirt than jeans or running pants. While I don’t think we need to force associates to pore over “Dress For Success,” I think that dressing up a bit is a step in the right direction, both for the lawyer’s self-image and the clients’ confidence in the attorney. Maybe ties can be optional, especially in the summer, but there’s nothing like a suit or at least a sport jacket to establish a tone of authority (deserved or not).

Limitations on scope of work performed

Federal and state laws and regulations operate together to impose a complex set of limitations on employing minors (children under 18 years of age). There are prohibitions on the type of work minors may perform as well as the number of permissible hours they may work. Permissible work for employees between the ages of 14 and 18 encompasses work in retail, food service, and gasoline stations (as long as they don’t have a significant repair facility).

Hours of work

Minors under the age of 16 cannot work more than 4hours per day when school is in session, 8 hours per day when school is not in session, 18 hours per week when school is in session for a full week, or six days per week.

In addition, they cannot work before 7 a.m. or after 7 p.m., with the exception that they may work until 9 p.m. from June 1 to Labor Day. Minors under the age of 18 must have at least 8 consecutive hours of nonwork time per day and cannot spend more than 12 hours in a combination of school and work hours per day.

No minor may work more than 5 hours continuously without a half-hour break.

Employment certificate

Every employee under the age of 18 must have an employment certificate. The certificates are issued by the Delaware Department of Labor (DDOL) and the superintendent or authorized designee of each school district. You must keep such certificates on file and make them accessible to the DDOL on request. The DDOL offers a sample certificate

Workers’ compensation may not protect you

It’s also worth noting that illegally employed minors who are injured on the job are not necessarily limited to their workers’ compensation remedies. A minor or his or her estate may elect to sue under a theory of negligence and/or wrongful death in the event of a serious or fatal injury rather than pursue workers’ compensation remedies. Accordingly, the risk of employing a minor illegally lies not only in incurring civil penalties and damage to reputation, but also in significant increases for potential personal injury liability.

Don’t Get Schooled

Many employers find out about child labor laws the hard way: They get sued for thousands of dollars in civil fines. Don’t be one of them. Conduct your own child labor audit and contact the DDOL or your legal counsel if you have any questions about compliance.

Department of Labor

The U.S. Department of Labor (DOL) has published a web page that’s loaded with information and suggestions to help employers keep their teen-aged workers safe and to keep themselves in compliance with child labor laws this summer. Not all employers are aware of state and federal restrictions on the activities in which teens are permitted to engage at work. Alert employers will want to review this page, click on the links, and plan the steps they will take to decrease the risk that their teen employees will be injured at work.

The Delaware Department of Labor (DDOL) also has information about state child labor laws available in booklet form. A brief summary is available on the DDOL’s website.

Sexual Harassment Awareness

Employers should also take steps to address the special vulnerability of teen workers to sexual harassment. As an item on this blog noted a few weeks ago, an ABA Journal story reported that the number of teen-aged workers filing sexual harassment charges is on the rise. Teen workers are often part-time or seasonal, and may be in the workplace for the first time. They tend to fall between the cracks when it comes to training. Many restaurants, movie theaters and retail stores have teen-age supervisors and managers as well as workers. Teens tend not to realize that the standard of conduct at work is different from what’s permissible in a social setting.

Bottom Line

To minimize their risks, employers who hire teen-agers must make a strong effort to educate them (and their supervisors) about harassment, retaliation and workplace safety in a meaningful and understandable way.

It seems natural. "Oh, I see you volunteer at the North East community center.  My kids take swimming lessons there.  Do your kids take any classes there?" Heck, I can give you a real-life example that happened to me last week. 

I was at the local greeting-card store.  As I was checking out, the [female] employee looks up and says enthusiastically, "Do you have any little ones at home?" 

I nearly choked on my Lifesaver.  I kid you not.  (No pun intended, really).  I stood there, mouth open, speechless. 

She turned around and grabbed a toy Schnauzer from a counter lined with little stuffed animals.  "You get one of these for free for a purchase of $20 or more."  I lifted my chin off the ground and nodded while she stuffed the toy toy (ok, pun intended) into my shopping bag. 

The employee was probably all of 23 years old.  She had no intention of forming opinions of me based on my answer to to her question.  She was just trying to give me the free toy.  But the question caught me off my guard. 

I can almost guarantee that if you went back to the store and asked her about it, she would have positively no idea who I was–one of many customers she’d seen that night.  She certainly would not recall what she’d said to me. 

It’s that easy.  Despite best intentions, it is so easy for an interviewer to ask a question that leads to a lawsuit.

When I teach seminars about best hiring practices, I usually get at least a few dirty looks when I talk about interview questions that should be avoided.  Employers and HR professionals often comment that interviews should be conversational to put the candidate at ease so the interviewer can get to know the "real" candidate.  Not a good idea.

Here’s why:

1. Every candidate that you interview except one is going to be rejected.  Remember that.  Every candidate except one goes home a loser. 
2. No one thinks they’re a loser.  No candidate who made it as far as the interview thinks that they shouldn’t get the job. Of course they should get the job! 
3. When rejected, blame-shifting is inevitable.  Do the logic.  If they were sure they were hiring-material but they don’t get hired, what can be the explanation?  Someone else made a mistake. (Namely, you, The Employer).
4. The interview becomes the target.  Well, what else is there?  The candidate had only one face-to-face interaction with The Employer–the interview.  Every word, every gesture, every question is analyzed to try to find what went wrong. 
5. Lawsuit. 

Sure, nobody likes a story with a sad ending.  But "it’s for your own good," ok? 

Interviewers (often untrained in employment discrimination) are just trying to make the candidate feel natural and at ease.  They want to know whether the interviewee will be a good fit, whether they have the technical skills needed, whether they understand the job’s requirements, etc.  They aren’t angling for prohibited information. 

But when a candidate doesn’t get hired, every question becomes suspect and the potential starter for a discrimination lawsuit. 

For those of you who want to know how to solve this problem, the best way to find out is to attend one of our seminars, especially those on lawful interviewing.  For now, I’ll say this: Every interviewer at every interview for every candidate should (no, must) use a script of pre-prepared questions.  And that script should be the same one used by every other interviewer for every other interview (at least for the same position). 

Autonomy in interviewing is a bad idea.

The HRhero.com website says this about the quiz:

Pregnant employees and those returning from maternity leave have rights regarding their employment. Check your knowledge of these rights by deciding how you would handle certain scenarios and then choosing the best answer.

The quiz was written by our own Adria Martinelli, who co-edits the Delaware Employment Law Letter with William W. Bowser and Scott A. Holt. 

Last month, Adria presented an audio conference on pregnancy discrimination, Pregnancy in the Workplace: Managing FMLA, ADA, and PDA Issues.  Adria also co-presented with Bill Bowser another terrific audio conference on pregnancy discrimination, Managing Pregnant Employees.  For more information about the conferences, see http://www.hrhero.com/audio/pregnancy/

Profiles of Maternal Profiling

In late April 2008, ABC News aired a piece on World News With Charles Gibson about Maternal Profiling.  As a follow-up to the piece, the ABCNews website posted an article called, Are You a Victim of Maternal Profiling, featuring women from Pennsylvania who had personally experienced this type of discrimination.

One woman believed that she was having trouble landing a new job because she was the mother of three.  She indicated that interviewers would often ask her outright whether she had any children.  She said that one employer told her that it would cost too much in health care.

Can He Ask That?

Can employers ask candidates whether they have children, or whether they have adequate child-care arrangements?   The answer is "yes," much to the surprise of many, including many of my HR clients.  Some states do have laws that prohibit these questions from being asked during job interviews.  But neither Delaware nor Pennsylvania are included among them.  So the short answer is, Yes, employers may lawfully ask job candidates about their "family status," including questions about whether or not the applicant has children, is married, etc.

Like Mom Always Said, "Just because your friends jump off a cliff doesn’t mean you have to!"

We teach a lot of seminars.  We counsel a lot of employers.  We answer a lot of questions.  And I can say with great certainty that we would never, ever, ever, advise our clients to ask something as foolish as "Are you planning to have children?" to anyone, and certainly not to a potential or current employee!

Just because it’s legal doesn’t mean it’s smart, right?  No good can come of these questions.  So don’t ask them.  Just don’t do it. 

Aging Workforce News (AWN) talks about a newly introduced piece of legislation, the “Incentives for Older Workers Act.” The proposed bill is designed to provide incentives and eliminate barriers for older Americans wishing to stay in the workforce longer, and encourage employers to recruit and retain older workers. AWN explains some of the bill’s highlights:

Given the statistics on Baby Boomers in the workplace, this law could help employers deal with what Forbes.com calls the “Gray-Haired Workforce.” By 2010, the number of workers aged 35 to 44–or those typically moving into upper management–will decline by 19%; the number of workers aged 45 to 54 will increase 21%; and the number of workers aged 55 to 64 will increase 52%. These statistic show that the workforce will include more and more employees aged 45 and over for several years to come. And they’re not going anywhere—AARP reports that 79% of baby boomers say they have no plans to retire any time soon.

The recent settlement by an EAP in a case involving a fatal workplace shooting may shine new light on just how much influence this type of service may have over your employees and how much risk you incur if you don’t set clear policies with your EAP. It should put employers on high alert about your EAPs policies on how they address and communicate referrals where violence is an issue.

The shooting in 2003 killed six employees in a Lockheed Martin plant in Meridian, Mississippi.  The suit was filed by Erica Willis, the daughter of one of the six victims.  The shooter worked at the Lockheed facility for 20 years before the shooting, in which he also took his own life. Willis filed suit not against Lockheed, the shooter’s employer, but against Lockheed’s EAP, NEAS, Inc.

The suit alleged that some of the employees who worked alongside the shooter had been complaining for months that their coworker had threatened them and used racial slurs in the presence of Black employees.  And, a year before the shootings, Lockheed told him that his continued employment would be contingent on completing a counseling program through NEAS. 

NEAS referred him to an affiliate, which cleared him to return to work after just three counseling sessions.  Later that year, he was attending a mandatory diversity training program when he walked out of the class without explanation.  He returned with a shotgun and a rifle. 

The suit claims that NEAS, Inc. (the settling party), failed to provide its affiliate with a full background for the referral.  Instead, NEAS is alleged to have stated only that the employee had "boundary/communication issues."

This case raises several interesting issues relating to violence at work. 

For one, the recent legislation signed into law in Florida, takes on new meaning in this context.  The State of Florida has a new law that prohibits employers from banning guns from their property.  Cautious employers have clear policies on the presence of weapons on company property, including employees’ cars in the company’s parking lot.  The Florida law that makes such a policy unlawful seems to be an invitation for disaster. 

It is also an unusual example in that the employer did not get sued–the EAP and its affiliates were the named defendants.  (The affiliate was dismissed early in the case).  Usually we counsel clients about workplace violence prevention in the context of suits for negligent hiring, retention, and training, property liability, and even the General Duty Clause of OSHA.  But this story evidences a whole new basis for liability if the employer fails to communicate how its EAP addresses employees with a proclivity for violence.  It’s not so far-fetched to imagine the EAP disclaiming all responsibility on the ground that it was simply following orders and pointing the proverbial finger at the employer who hired it.

And yes, it can happen to you.

Perhaps the single biggest error employers make when it comes to workplace violence is the mistaken belief that it "can’t happen to them."  Workplace violence is, and has been, in every type of workplace in cities and states across the country.  Fatal and non-fatal incidents occur everywhere and can occur at any time.  On average, 1.7 million workers are injured each year, and more than 800 die as a result of workplace violence.  There are no second chances when it comes to employee safety, so take the initiative to implement preventative practices before it’s too late.