August 1, 2000

Avoiding Lawsuits is a service of the employment law training and consulting firm of Counsel Consulting Group LLC and the law firm of Powell, Trachtman, Logan, Carrle & Lombardo, P.C.

Avoiding Employment Lawsuits The Employment Interview

It is tough enough to swallow an employment liability lawsuit brought by an employee, but a lawsuit brought by someone you never even hired is truly a bitter pill. In our experience, many companies do not realize that the federal and state laws dealing with employer liabilities apply before the employment relationship begins, during the hiring process. Employment interviews are a particularly fruitful source of lawsuits. Prospective employees will often claim that you failed to hire them for an illegal reason, such as gender, disability, or age. Their key evidence will be something your interviewer said during the employment interview, or something that was included in the application form. Most employers already know that it is unlawful to discriminate on the basis of such factors as race, religion, nationality, age and disability. Where employers get themselves into trouble is that they ask about such factors during the interviewing process, usually innocently and in the context of trying to break the ice and engage the applicant in conversation or, sometimes, in the effort to get information every employer might like but which the law disallows. For instance:

• "I see you just moved here. Have you found a church yet?".
• "That's an interesting last name. What nationality is that?"
• "I see you have a limp. Is that permanent?"
• "Have you ever consumed excessive amounts of alcohol?"
• "How do you feel about unions?"

Or the employment application, often an anachronism from years past, is replete with "smoking gun" questions pertaining to age, race, physical condition, history of workers compensation claims, and so on.

These kinds of questions lead to the following arguments in court: "If (religion) (nationality) (disability) (age) (and so on) were not important to them, why did they ask about it?" Of course, you will have your explanation, but the fact that you are put in the position of having to explain these things during an uncomfortable cross examination poses a huge risk, especially when you remember that the jury will be comprised of persons who identify more with employees than employers.

There are lots of things you can ask prospective employees. For instance, you can ask about physical conditions so long as your questions are limited to finding out if the prospect can handle the essential functions of the job (i.e., heavy lifting, driving, etc.). You can ask about work attendance. You can ask about skills and work history. But once you digress from those characteristics that pertain directly to qualifications, you are in dangerous territory.

SUMMARY - The key to avoiding employee lawsuits that arise out of employment interviews is three-fold:

1. Train the people conducting the interviews. This is not common sense. It is an acquired skill. Do you ask which spouse stays home if a child is sick? Do you ask if the applicant has ever been treated for alcoholism? Do you ask what medications they take? Do you ask if they have ever been a member of a union? If you do, you are virtually asking for a lawsuit.
   
   
2. Provide them with scripts and checklists that will keep them in safe territory, dictate what the do and don't do, and minimize "ad libbing". Your interviewers need to ask the same questions of all applicants for similar positions, and they need to stay away from seemingly innocent but unlawful inquiries. And remember that their notes will be discoverable in any lawsuit. If they write down the applicant's race or age, for example, they will have to explain why they considered that significant enough to note;
   
   
3. Have counsel review and revise your employment application forms and pre-employment procedures. For instance, do you require physicals before making a job offer? Do you require the employee to list prior injuries? Do you ask for the applicant's age? If you do, you are violating numerous federal and state laws that award substantial damages and counsel fees to affected applicants.

THE "MY WORD AGAINST YOUR WORD" PROBLEM

A great many business lawsuits inevitably boil down to competing versions of what was said or promised during the course of a meeting, telephone conversation or other transaction. Lawyers refer to this as the "my word against your word" problem, and sooner or later, everyone in business realizes the following: there is nothing more frustrating (and potentially career-threatening) than knowing you are right and not being able to prove it.

If, however, at an early point in the dispute, you can convince your adversary and his or her lawyer that they have no chance of proving their version in court, you will usually be able to settle favorably, quickly and cheaply. No one wants to get involved in a lawsuit they are almost certainly going to lose. In order to take advantage of this business reality, you need to know how to stack this deck in your favor.

There are various ways you can put yourself in a position to prove you're right, and we will deal with these techniques periodically in Avoiding Lawsuits. Perhaps the easiest way is through a device lawyers call a "confirming letter". For instance: "Dear Joe: Confirming our conversation of 10-1-99, you have advised me that (for example: you will deliver in 10 days; you have agreed to purchase X units; your financial statements are complete and accurate). If I have misstated our conversation in any way, please advise me in writing immediately. As you know, I am relying upon our conversation and moving forward on this basis." If you can prove the other side got it and did nothing about it at the time, the other side will have a hard time proving that they are not bound by the deal set forth in the confirming letter.

SUMMARY - here is what you need to make a confirming letter work for you:

• Make sure you state exactly what you want to confirm in a way that you are willing to live with forever. If you're not sure how to phrase it, get some advice;
  
  
• Make sure you tell the recipient that you are acting in reliance on what was said or done. This is a key element - the law will generally make people pay for the reliance they reasonably induce in others;
• Make sure you tell the recipient to notify you immediately if anything you say in the letter is wrong. It's best to have them do this in writing. Otherwise, you may get into a "my word against your word" battle over whether they attempted to correct your letter;
• Make sure you can prove they got the letter - return receipt, courier service receipt, fax receipt, etc.;
• Pick your spots. If you keep peppering the other side with confirming letters after every telephone call, you are going to provoke a reaction that will either hurt business or contradict your letter.

Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.

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