By Patricia M. Trainor, J.D.
Legal Editor

Human resources managers can often save their companies thousands of dollars in litigation fees by spending just five minutes consulting with their attorneys. So says Tracy L. Cahill and Veronica T. von Grabow, attorneys in the Los Angeles offices of the law firm Mitchell, Silberberg & Knupp LLP.

Cahill and von Grabow spoke at the Preconference Workshop of BLR's National Employment Law Update this week in Las Vegas . They provided guidance for HR on working with their attorneys to keep workplaces running smoothly and litigation-free by involving attendees in a discussion of a series of hypothetical scenarios representing potential problems throughout the employment relationship. The following are a few examples from their presentation.

Rescinding a Job Offer

In one scenario, a company makes a conditional job offer to an applicant contingent on the results of his background check and medical examination. First, the applicant's medical exam shows that he has a terminal disease. The next day, his background check shows that he filed for bankruptcy ten years ago and he has been arrested multiple times for armed robbery. The manager wants to rescind the job offer. Not so fast, say Cahill and von Grabow. Attendees agreed, noting the many concerns this situation raises, including:

• The ADA may be implicated here. It would be important to consider whether the terminal illness was relevant to the individual's job performance.
• The Fair Credit Reporting Act limits employers' use of background check information and requires disclosure to the applicant if adverse information from a background check is used as a basis to refuse employment. Considering the arrests and past bankruptcy may violate that law.
• Refusing to hire someone because of past arrests, not convictions, may violate discrimination laws.

Practice Tips:

• When hiring, identify the decision-maker and what he or she needs to know about the applicant.
• Always do the medical exam last--after reference and background checks.
• Make sure your outside medical vendor informs you only whether the applicant can do the job, not of specific medical conditions.
• Likewise, make sure your background check vendor provides you with only the information you may legally consider in making hiring decisions.

Attendance Issues

A six-month employee has a record of tardiness, and he never calls in two hours before his shift as required by company policy. He has numerous excuses for his lateness, ranging from oversleeping to missing the bus. After receiving a final written warning, he informs HR that he has been taking medication that makes it difficult for him to wake up on time for work.

While some attendees felt that the employee should be disciplined or terminated, Cahill and von Grabow counseled employers in this situation to hold off and consider some possible legal issues, including:

• The Americans with Disabilities Act (ADA) or state disabilities law may require the employer to accommodate this employee, if he has a disability under the Act. If so, the employer should begin the interactive process of finding the appropriate accommodation.
• Consider whether a leave of absence would be an appropriate accommodation. Even though the employee has not worked for the company long enough to qualify for leave under the Family and Medical Leave Act (FMLA), a state leave law may apply or the company may have its own applicable leave policy.
• Make sure that the company's attendance policy has been fairly and consistently applied before taking adverse action against this employee. Ask how the company has treated similarly situated employees in the past.

Practice Tip:

Cahill and von Grabow suggested that in a situation like this, the employer direct the employee to get a doctor's note explaining the excuses for the absences. Cahill also stated that patience is important for HR, noting if the employee is unable to successfully perform his job, he will eventually quit or be fired.

Termination Issues

In this scenario, an employee circulates a letter of protest she's written after a coworker, with whom she's had many conflicts, is promoted. In the letter, the employee states that the coworker is “unreasonable” and “difficult to work with.” As a result, the coworker's ability to do the new job is undermined and employee morale has suffered. The employee's manager wants to immediately fire her for this unprofessional conduct. Here, the discussion centered on issues to consider before terminating the employee such as:

• Understanding and investigating the nature of the conflict between these two employees.
• Reviewing discipline policies and past practice regarding termination for a first offense. It is important that the company apply discipline fairly and consistently to avoid discrimination claims.
• Considering whether the employee's conduct was protected by the National Labor Relations Act (NLRA). Cahill and von Grabow pointed out that in a factually similar case, a court ruled that the employee was wrongfully terminated for engaging in protected concerted activity. They observed that it is easy to forget about the NLRA, especially if your company is not unionized. Yet, that law applies even in non-unionized settings.

Practice Tip:

Cahill and von Grabow urged attendees to rely on their attorneys when managers are reluctant to take the most prudent course of action. Attorneys can help educate managers about the legal risks. And, unlike HR, attorneys do not have to worry about maintaining a working relationship with them.