If you own your own business or are a manager at the company where you work, you may think you’re the boss and that the people who work for you are required to follow your instructions.  If that’s what you believe, you may need a reality check.

Since the 1960s, the rights of employers have been steadily eroded, to the point that today the question is, or should be, who has more rights, employers or employees?

Forty or fifty years ago, there was no question of who controlled the employer-employee relationship.  It was the boss, who could pretty much hire and fire at will and had the right to expect the people who worked for the company to do pretty much what they were asked to do.  Not so any longer.

Hiring New Employees

One aspect of the relationship that has undergone major change is the hiring process.  What employers are allowed to ask when they are interviewing prospective employees has become increasingly limited.  A recent article in the California CPA magazine (Interviewing 101, September 2007) offers the following caution: “Employment-related issues have been a legal minefield for employers.  Asking the wrong questions during the interview process – or in pre-interview applications – can spell disaster for a company or firm in the form of discrimination lawsuits.”

Wow!  Who would’ve thunk we could be sued for asking the “wrong” questions when we’re interviewing people for a position with our company?  If you think that’s not the case, think again.  The list of questions that comprise the labyrinth of legal issues that must be negotiated today when we are interviewing prospective employees for a job opening seems almost endless.

Don’t Ask

We are admonished not to ask for the following information or documentation:

• Whether someone’s original name has been changed or their maiden name.
• Place of birth, or that of the applicant’s spouse or parents.
• Age.
• Birth certificate or baptismal record.
• Religious affiliation or race.
• Photographs (prior to employment).
• Age or date of birth.  Questions that relate to federal or state minimal age requirements are OK, such as “Are you over the age of 18.”
• Specific years of attendance or graduation from high school or elementary school.
• Whether an applicant is or plans to become an American citizen.
• Questions about applicant’s lineage, ancestry, national origin, parentage, nationality of language that is commonly used.
• Workers comp history.
• Applicant’s mother tongue, names of or information about relatives.
• Military experience, other than U.S. Armed Forces, National Guard or Reserve duty.
• Clubs, societies, lodges or other organizations to which the applicant belongs which might indicate race, religion, etc.
• Marital status or dependents.
• Address of a “relative” to be notified in case of emergency.  You can ask for an address of a “person” to be notified.
• Existence or severity of a physical or mental condition or disability that is likely to elicit information about disability or workers’ comp history.

In addition to not being able to ask for the foregoing information, a physical exam can only be required after the job offer has been extended and before the applicant starts work.

• Pre-employment drug tests are allowed, but they must be administered according to specific federal and state rules.
• Psychological testing is not allowed unless the questions are related to the job and the employer must have a compelling interest in giving such tests.
• Skills tests are only allowed if they comply with EEOC/California Department of Fair Employment and Housing Guidelines (to help avoid “adverse impact” claims.)
• Polygraph tests are generally prohibited.

Be Wary of Lawsuits

It has reached the point where employers often find it necessary to consult their attorney or a Human Relations professional before taking almost any action on employee related matters. 

Not only is it necessary for employers to be wary of lawsuits when they are interviewing prospective employees, but they should also tread carefully with people who are already working for them, particularly when problems arise and it becomes necessary to discipline or terminate someone. 

Extreme caution must be exercised in almost any employee-related matter lest we run afoul of the law and draw a discrimination lawsuit of one sort or another.  And, the amount of time, effort and energy that’s expended (read wasted) for that purpose often diverts management’s attention from conducting the business of the firm, at considerable loss of time and money.

One employer with whom I’m familiar felt it was necessary to give two weeks’ pay to someone who was terminated, but required the employee to leave the premises that day, because they were concerned about the person’s potential for causing trouble.

Some years ago, when I was running a firm with about 110 employees, we terminated an employee because her position had been eliminated in the course of reorganization.  She sued for unlawful termination, and although we attempted to settle the case on several occasions, her attorney insisted on pursuing the claim, seeking extremely high damages.  In spite of losing at trial, he persisted through two levels of appeal.  The entire process cost us $50,000 in legal fees over and above the amount that was covered by our insurance carrier.  In all, the matter cost our side something in the neighborhood of $150,000, and the employee received nothing.   It was a complete waste of everyone’s time and resources, a circumstance that’s not unusual in this day of so-called enlightened personnel management.  The unfortunate employee, who I believe had been encouraged by an overly ambitious but not very competent attorney, was forced to endure a process that took many months to resolve, and in the end she got nothing.

Who IS The Boss?

So, the question remains, “Who’s the boss?” - The owner or manager of a business or the employees?  My sense is that the pendulum has swung too far to the side of the employees, which causes management to jump through too many unnecessary and costly hoops simply to document a record in order to avoid litigation when it becomes necessary to discipline or terminate an employee. 

The situation with the Santa Barbara News Press comes to mind, where it appears that many of the paper’s employees (or former employees) seem to think they have the right to tell the owner how she can run her own business.  So far, the case has been in trial and the appeals process for months.  One can only guess at the enormous expense that’s being incurred by the firm to defend its right to manage its own business.

© 2008 Harris R. Sherline, All Rights Reserved