January 2016 Bar Bulletin
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January 2016 Bar Bulletin

Game, Set and Match Strategic Planning for Employee Success

By Karen Sutherland


Employment lawyers have a window into business practices that can either put employees on the road to success or on the road to litigation. Below are some unscientific observations from more than a quarter-century of practicing employment law.

Hiring and Promotions

In the long term, it is a lot less stressful to take the extra time to find the right person for the job than to hire people with the expectation that they will change after they have been hired. Having clear, consistent job descriptions and job postings that match the actual work the employee will be performing increases the likelihood of hiring the right person for the job.

Beware of pre-hire personality tests that are intended to determine if an employee will be a “good fit.” Some test questions could constitute an impermissible pre-offer medical exam under the Americans with Disabilities Act.1 Pre-hire test questions could also “have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin, where the tests or selection procedures are not ‘job-related and consistent with business necessity.’ This is called ‘disparate impact’ discrimination.”2

There are laws that limit what can be asked on an employment application. For example, some jurisdictions such as Seattle have adopted a “ban the box” ordinance that states, in part: “An employer may perform a criminal background check on a job applicant or require a job applicant to provide criminal history information, but only after the employer has completed an initial screening of applications or resumes to eliminate unqualified applicants.”3

There are also limits on pre-
employment inquiries on subjects such as age, family, prior names, military status, national origin, organizations the applicant belongs to, race, etc., to avoid unfair practices under the Washington anti-discrimination statutes.4

If an employer is going to have a background check done by a third party, the employer must follow the federal and state Fair Credit Reporting Act requirements.5

Employers should find out if potential employees have any restrictions on their ability to work such as non-
competition or non-solicitation agreements before making an offer.

Since employees cannot be prohibited from comparing their compensation, employers should not be surprised at questions about compensation and should be ready with a legitimate business reason for why a new employee is paid more or less than other employees.

If the criteria for obtaining a promotion are not clear, employees who are passed over for promotion may assume that the decision was because of favoritism or that it was based on illegal criteria such as age, sex, race or national origin.

Employees are less likely to take direction from a peer who was promoted if they do not feel that the promotion process was fair. Individuals may be promoted to supervisor or manager positions based on subject matter expertise without any experience managing people, which may impact their ability to be successful leaders.

Organizations that have few promotional opportunities may need to find other ways to keep long-term employees engaged if they want to reduce turnover.

Performance Expectations

Employee involvement in setting expectations and performance benchmarks increases the likelihood that they will be attained. If different employees with the same job title have different performance expectations, there should be a legitimate business reason for the differences in expectations.

Performance expectations and deadlines may need to be adjusted for periods of protected leave, such as leave taken under the Family Medical Leave Act or leave taken under state or local sick or safe leave laws or ordinances.

Giving employees real-time feedback, positive and negative, on their performance makes annual performance evaluations a lot easier. Supervisors and managers often avoid giving negative feedback in a performance review because they have never had any training on how to give effective feedback.

Unwritten and unexpressed expectations for employee performance and employee behavior lead to frustration on the part of both the employee and the supervisor.

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