Hiring Tips | Hiring and the Law

Hiring and the Law —
Should You Respond to Inquiries From Rejected Applicants?

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: : An applicant I recently rejected emailed me and asked if I could tell her why I didn’t hire her or what she did wrong in the interview so she could do better in the future. Do I have to answer her? If so, what can I say?

Answer: From a legal perspective, no. You have no legal obligation to respond to her email at all. In fact, should you choose to answer, there could be legal liability created for your company depending on your response. This is one of those situations where there is no straight forward answer.

You should be aware, however, that recruiters are recommending that disappointed candidates send “rejection follow-up” letters and emails to the hiring manager that rejected them. They are also telling the candidates that they should pester (my word) the hiring manager for the reason “why.” Thus, it is likely that you will see more of this type of follow up inquiry from rejected applicants.

Even though you have no obligation to explain your reason for the rejection, it is important that you do have a clearly articulated reason “why”—even if you never share it with the candidate. This is needed to defend against a failure-to-hire discrimination claim from a candidate who feels that he or she was rejected based on their age, race, national origin, religion etc. Thus, keep in mind that the inquiry may be a fishing-expedition from a disgruntled candidate and not just an effort to learn from their mistakes.

Nevertheless, there may be certain situations where you might want to respond. How you respond to a rejection follow-up inquiry depends on why the candidate was rejected. For example, would you have hired the person if you did not have a better candidate? Or, is there no way that the applicant would ever get a job with your company?

If the inquiry is from someone that you really liked and would have hired but they were the runner-up, you might want to maintain communication with the person in case another position for which they are suited opens up in the future. In that case, it is likely safe to say something like “You were a (very) strong applicant and we enjoyed meeting with you, but we had another candidate whose background (or whose experience or whose skill-set) was a better match for our needs at this time. If another position opens up that is a good match for your skills, we may reconsider your application at that time. Please let me know where you land.” That lets the applicant know that they interviewed just fine and maintains communication with a possible future recruit. It also is a good networking move, especially if they are in your industry so that their take-away from their interaction with your company is positive.

In such communications, however, never say you will consider them, or that you will reach out to them, but say, instead, that you may consider doing so. You don’t want to make any promises. What if something opens up in two years and you have completely forgotten about this applicant, but you said we “will reach out to you”? While it is unlikely that the applicant would know about the position two years down the road, and hopefully they are gainfully employed by then, to best protect your company you do not ever want to tell an applicant that you will do something unless you are 100% certain that you will.

If the applicant was someone you would never hire, you need to be careful in terms of what you say. That person may simply have been a bad fit for your company—but telling the applicant that may communicate that they weren’t the right age, or race, or gender etc., which of course would be discriminatory. If you have something specific you can say (for example, there were typos in the revised résumé they gave you at the interview; they knew absolutely nothing about your company and you expect your applicants to do some homework; they came to the interview in jeans; etc.), and you want to help the applicant do better next time, you could mention something along those lines. This would be pointing out very objective criteria that the person could not argue with you about.

When it comes to a more subjective determination, it may be best to just say that you are sorry, but it is not your practice to provide that information. Or—you don’t respond to the email/letter at all.

Or, you call your friendly employment lawyer, talk through the situation, and determine what to do that best protects you and your company with regard to that specific rejected applicant.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law. These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice. Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com. She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

To see how our employee test can help you bring better people on board watch this three minute video.

If you have ever interviewed someone and later discovered a "different" person is working for you, check out our new book How To Hire The Right People.

Hiring and the Law —
Testing Just One or Two Staff?

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: Can an employer do personality or other similar testing on just 1 or 2 of his or her existing staff to find out about them without also testing the rest of the staff? Is this opening the door to potential legal action?

Answer: The answer depends on why the employer wants to do the testing. One of the main concerns with employee testing is to ensure that it is not done in a discriminatory manner. If the employer appears to be singling out the women for testing, when not testing the men for example, or makes other divisions along lines that could be perceived as being discriminatory, the employer runs the risk of an employee claim that the action was, indeed, taken for discriminatory reasons. This is especially so if an employee suffers an adverse employment action as a result of the testing.

There may be times, however, where testing a few, but not all, of an employer’s current employees may be appropriate. For example, if the employer is choosing between two candidates for a promotion it would be acceptable to test both of those candidates, but not test any of the other employees who are not promotion candidates. This is a legitimate reason to test only those two employees and not the others. The testing done may give the employer insight into which employee to promote.

Thus, whether it would be legally prudent to test just one or two employees depends on the reason the employer wants to “find out about them.”

As with all testing, however (including pre-employment testing) it is best not to use the test as a tie-breaker or definitive determining factor in making any employment decision. Test results should be looked at as part of a package of information that an employer is considering. While testing can provide good insights into candidates and employees, it is prudent to consider all the information to hand in these situations. This is especially so where the testing results do not jive with what has been observed about the employee. For example, if the test shows the person has a good communication level, but the person who interviewed clearly did not – don’t rely on the test alone. Consider what you observed and remember that it is the person, themselves, who is answering the test questions and is answering as to how they perceive themselves.

If, on the other hand, an employer is considering doing testing because an employee is not performing well and the employer wants to “find out more about” the employee—that may not be an appropriate time for testing. The test results won’t change the fact that the employee is performing poorly and may, more likely, lead to a legal claim by the employee that he or she was being singled out for some reason when being “subjected” to testing.

Accordingly, whether an employer can test some, but not all, employees really depends on the situation.

To see how our employee test can help you bring better people on board watch this three minute video.

If you have ever interviewed someone and later discovered a "different" person is working for you, check out our new book How To Hire The Right People.

Terminations and the Law — Severance

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: I’m letting an employee go on Friday. Do I need to give her two weeks of severance?

Answer: As I’ve said in a number of my columns—that depends. The answer depends on a number of factors including whether you have a contractual obligation to the employee to pay severance, if you have a policy or severance plan guaranteeing severance pay to your employees, or if you have a practice of paying severance pay to similarly situated employees that you let go in the past. It also depends on certain legal considerations that I will discuss below.

Even though “everyone knows” that you are supposed to get two weeks’ notice or two weeks’ severance pay when you are let go from a job, this is not actually the case in the U.S. There is actually nothing under U.S. law that requires an employer to provide severance pay to an employee who has been discharged unless that employer has created the obligation him or herself. The “two weeks’ notice/two week’s pay” guarantee comes from union collective bargaining agreements. Most unions have negotiated that guarantee. But unless you have a unionized workforce with such a provision in an agreement, or have otherwise guaranteed severance through a policy, plan or practice, nothing requires that you give an employee you are letting go any additional compensation as severance.

That said, there may be legal considerations that weigh in to the determination as to whether to provide severance pay or not. These are issues that you should likely discuss with an employment attorney but such situations arise when either (a) you are letting an employee go who has already raised an informal legal claim against your company or (b) you are letting an employee go under circumstances that may tend to appear to be discriminatory, even when they are not.

In the first instance, you may have an employee who is performing poorly and who is being performance managed to try to get her to improve. When she sees the handwriting on the wall that she is about to be let go, she may claim that she was being sexually harassed in an effort to divert attention off her, or to try to protect her job. Of course, you need to take the complaint seriously, investigate it, and take whatever action you deem appropriate to stop any harassment you confirm. However—if you let that employee go after such an investigation it could appear that you were firing her in retaliation for making a sexual harassment complaint. In such an instance, and to avoid a retaliation claim, it may be prudent to offer some amount of severance in exchange for the employee signing a severance agreement waiving all legal claims against the company. That way, the business can have closure on the situation.

Similar situations arise when a company is looking to terminate an employee who just advised that she is pregnant, or he has cancer, or who has become too elderly to perform at the necessary speed. Providing severance pay (along with a severance agreement drafted by an attorney) can be a way to ease an employee’s transition out of the workplace, and avoid a discrimination lawsuit that can be costly and time consuming.

Thus, the answer to your question most likely is “probably not.” But this is a situation where a call to your local employment counsel to discuss the facts of this particular situation may be prudent to prevent other legal headaches down the road.

To see how our employee test can help you bring better people on board watch this three minute video.

If you have ever interviewed someone and later discovered a "different" person is working for you, check out our new book How To Hire The Right People.

Terminations and the Law —
Payout of Vacation Days on Termination of Employment

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: I just let an employee go for not meeting job expectations. She sent me a text message asking when I would be sending her payment for the vacation days she didn’t use. Do I have to pay her for those?

Answer: The response to that question is again (as I’ve noted in other columns) a very lawyerly “it depends.” In this case, the answer depends upon the state your company is located in, as well as what your vacation policy says. Don’t have a vacation policy? Then the response defaults to your state’s law.

Many states have little to no legal requirements when it comes to vacation pay – unless the state includes accrued vacation days in the definition of “wages” and also has a requirement as to when all wages must be paid to an employee whose employment has been terminated.

Many states require final payment to terminated employees to be made no later than the next regular pay date. Some states, however, like California and Massachusetts, require you to hand an employee their pay—the final pay check—in the termination meeting—and specify that “final pay” includes accrued but unused vacation days.

Other states, like New York, tell employers to follow their own policy with regard to the payout of vacation days to terminated employees. These states allow employers to have what are called “use it or lose it” policies: if the employee does not use his or her vacation days, they are forfeited and not paid out upon termination of employment. If, however, your vacation day policy does not specify that days are forfeited, and is silent on that issue, you may be required to pay them out. If you are in a state that permits “use it or lose it” policies, it is prudent to include language both forfeiting unused vacation days upon termination and indicating that unused days will not be paid out.

If employees believe that they are owed for unused vacation days, and your state’s laws or regulations require that vacation days be paid out, terminated employees can usually go to your state’s Department of Labor and file a wage payment claim against your company seeking the value of the unpaid vacation days. Companies can handle such wage claims in the DOL alone, without the assistance of an attorney—but government agencies usually will provide more assistance to the employee than they will to you.

If your state has no law requiring pay out of vacation days, but your policy clearly says they are paid out and then you do not pay them, the employee would need to bring a lawsuit against your company (probably in small claims court) seeking payment under the policy probably alleging a breach of contract (i.e. the company promised to pay out unused vacation days and broke its promise (violated the contract) with regard to this employee). How successful such a lawsuit would be depends on a number of factors, including the language in your vacation pay policy and whether the court will consider the policy to be an actual contract the court can enforce.

Thus, to answer your question you need to first look at your vacation pay policy. If you don’t have such a policy, look to your state’s wage laws. To find them, go to your state’s Department of Labor web site (or the website for the equivalent state agency that handles employee wage issues for your state; for example, in Oregon the agency is called BOLI – Bureau of Labor and Industries). Most such web sites have an “FAQ” (frequently asked questions) section specifically for employers and often you can find your answer there. You also probably can call that agency and ask the question without giving any identifying information about yourself or your company—but that is not always the case. For certainty in terms of what to do (and how to fix your policy if needed for the future), consult with a management-side employment lawyer familiar with the law in the state where your company is located.

To see how our employee test can help you bring better people on board watch this three minute video.

If you have ever interviewed someone and later discovered a "different" person is working for you, check out our new book How To Hire The Right People.

Hiring and the Law —
Appropriate Applicant Communications

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: I’ve been communicating with a potential applicant by text message. Is that appropriate?

Answer: In a word – no. All communications that employers have with applicants and employees can have legal implications for the business. Employers have legal obligations to employees and applicants, and one of the best ways to prove that those obligations were satisfied is to have documentation of the exchanges. That documentation should be dated, should use good grammar and punctuation and should be professionally drafted. “C U 2night?” or “LOL-grt resume!” or “When cn u start?” are not the sort of communications you should be having with an employee or applicant and can be an embarrassment, at the least, if you had to present them to a jury.

Putting aside the grammar, punctuation and professionalism arguments (which should be self-evident), employers should keep records of all communications with employees and applicants so that (a) you know what transpired and (b) you can rely on them if needed. How do you get text messages into your personnel or applicant’s file? Many cell phones do not have a mechanism by which to forward the text or get it printed out. But even if they can be printed out or otherwise saved, see professionalism argument, above.

Moreover, a company’s access to its managers’ text messages is only practical as long as those managers are employed—especially as managers often text from their personal cell phones, rather than from equipment provided by the company. What manager do you know is going to print out or otherwise save every text message with an employee? Once a manager is terminated (for whatever reason) those important company communications depart with the manager (and his or her phone). If those communications had been had on the company’s email system, this would not be a problem.

Additionally, with these quick messages, employers often omit important statements that us employment lawyers love to see in communications with employees to protect the business. Or they “forget” to have important communications with the individual at all, such as advising applicants that they are actually hired; putting information in writing that your state may require be provided to applicants and/or new hires; specifying start dates etc.

More often text message fiascos happen when employees are out on leave and are not returning when the employer expects. The quick messages between employer and employee can be convenient—but they provide absolutely no protections to employers if the employee (who was out on disability or pregnancy-related leave) then brings an employment discrimination lawsuit against the employer claiming that the employee was denied reinstatement because of his or her disability/pregnancy.

While it may seem to be a hassle in this day and age to use old-fashioned snail-mail letters or, heaven forbid, a fax machine—at least communicate with employees by email or other messaging system that retains messages and allows easy printing of the communication string. But there are times when snail-mail with official and professional letters printed out on letterhead, and signed by an actual person, is probably the better way to go. If you must – draft the letter; use an electronic signature and email it as a PDF. That can be just as sufficient.

To see how our employee test can help you bring better people on board watch this three minute video.

If you have ever interviewed someone and later discovered a "different" person is working for you, check out our new book How To Hire The Right People.