There are many examples of lawsuits relating to hiring practices that would not have happened if the employer had acted within the confines of the law. Fairness is one of the most important elements when supervising employees. In addition, employers can improve the quality of their employees by using an effective screening process before the actual hiring takes place. It is imperative to perform thorough background checks on applicants in the healthcare field because they may not confess to a criminal record on an application form. Employers are at risk of lawsuits when they hire employees who are a foreseeable danger to others. Some recommendations for good hiring practices are presented in Table 8.1 .
The employee handbook usually explains behaviors, such as sleeping on the job, that can cause an employee’s termination. Management needs to use care when issuing a handbook. Statements in employee handbooks have been interpreted as “implied contracts” in a court of law. In Watson v. Idaho Falls Consolidated Hospitals, Inc., a nurse’s aide claimed wrongful discharge and sued her employer, a hospital, for violating provisions in the employee handbook when it terminated her. Employees had been asked to read and sign a revised handbook to show that they understood hospital policies regarding counseling, discipline, and termination. The court stated that management and the employees were under an obligation to follow the policies stated in the handbook. Because it was proved in court that the hospital violated the stated policy in the handbook when it terminated her, Watson won her suit. (Watson v. Idaho Falls Consol. Hosp. Inc., 720 P.2d 632, Idaho 1986).
In another case, a Minnesota court held, in a wrongful discharge suit, that the hospital’s employee handbook was clearly an employment contract. The handbook contained detailed statements on conduct and procedures for discipline, which the hospital violated when it fired the plaintiff (Harvet v. Unity Medical Ctr., 428 N.W.2d 574, Minn. Ct. App. 1988). These cases indicate that the employee handbook must be carefully examined for any erroneous or misleading statements.
TABLE 8.1 Recommendations for Good Hiring Practices
|· Develop clear policies and procedures on hiring, discipline, and termination of employees.|
· Effectively screen potential employees’ backgrounds.
· Clearly state in all written materials, such as employee handbooks, memos, and manuals, that an employee handbook is not a contract.
· Use a two-tier interview screening process. Have candidates interviewed both by health-care professionals who will supervise or work with the new employee and by trained human resource or personnel department employees.
· Carefully assess the applicant’s skill level by having him or her perform some of the position requirements (i.e., drawing blood samples, teaching, performing surgical setups).
· Develop an application form that asks for appropriate information about the applicant’s qualifications.
· Provide a job description to every employee.
· Develop a progressive disciplinary procedure and make the policy known to all employees and supervisors.
· Whenever possible, have human resource personnel present during the firing process. Document what is said during this process.
· Provide in-service training to supervisors on how to conduct job interviews and motivate and discipline employees.
· Become familiar with the legal and illegal questions that can be asked in an employment interview.
In addition, employees should be given opportunities to speak and present evidence in their own behalf. Employees should be allowed to see, comment on, or copy anything affecting them in written reviews and personnel file memos.
LEGAL AND ILLEGAL INTERVIEW QUESTIONS
The Equal Employment Opportunity Commission (EEOC) has strict guidelines on the types of questions that can be asked during a job interview. These questions have both ethical and legal considerations. Questions that may be interpreted as discriminatory cannot be asked. In some cases, a question may be legal but still inadvisable for an interviewer to ask. For example, while it is legal under the law to ask if an applicant is married, it is inadvisable because it may be discriminatory. Marriage has nothing to do with job performance. If an unmarried applicant is hired, a married applicant may believe that he or she was not given the job based on marital status. Table 8.2 contains a list of questions you can and cannot ask during an interview.