Let Your Managers/Supervisors Ask These Questions – You’ll Get One.

1) I think you’re depressed. Shouldn’t you see somebody?

Comments like this may be made with the best of intentions, but they can have disastrous repercussions. That’s because questions about medical conditions and disabilities put you on record as “regarding” or having the perception of the employee as having a disability. And that can lead to ADA and other compliance dilemmas.

In these situations, focus on the job requirements and how a person is failing to meet them. Don’t make clinical judgments. It is OK to ask “What can I do to help?”

2) You’re going to take 5 weeks off to “bond”? I don’t think so.

The rules regarding leave-including the Family and Medical Leave Act, the Americans with Disabilities Act, workers’ compensation laws, and myriad state regulations-are treacherous territory. Tell untrained managers and supervisors they need a guide to go there … have them call the HR Dept at A Plus Benefits – you’ll never get a bill for talking to us and you’ll greatly decrease your chances of getting a huge bill from the court, your lawyer and your employee’s lawyer because a manager/supervisor said the wrong thing.

Make your rule a simple one-when people ask for time off, talk to HR.

3) You’re giving 2 weeks’ notice? Why don’t we just make today your last day. You’re fired!

Nice work-you’ve just turned a voluntary resignation with little potential for a lawsuit into a termination with every likelihood of legal action. If you must have a terminated employee leave immediately, pay the 2 weeks anyway. It’s cheap insurance.

Get resignations in writing, if the departing employee won’t give you a written notice of resignation within 24 hours of announcing their plan to leave and your request for written confirmation, send the employee an e-mail or memo that specifies that you understand that their employment is going to end on “X day”, you accept their resignation and that their departure is voluntary.

4) Are you married, and what are your plans for a family?

This is a typical interview question, and a dangerous one. Marriage and family questions are out, right along with, “Are you pregnant?” and “Do you have childcare responsibilities?”

Questions along these lines always suggest a discriminatory motive. The employee may sue, charging discrimination, and you will have to explain why you asked the question.

New managers and supervisors are the ones most likely to blurt out inappropriate questions-because they are inexperienced and nervous interviewing others. Train people before you allow them to interview. Give those who are conducting an interview a script with clear instructions that the interviewer is never to stray from the written script.

Remember, curiosity killed the cat, instruct managers and supervisors to ask only those questions that are associated with the job. Marital status and children have nothing to do with being qualified to do a job.

5) Oh, what a lovely accent-where are you from?

Any racial, ethnic, and religious questions and comments are out of bounds. Way out of bounds.
Once again it’s the curiosity thing and more feline casualties. You can wait until the person has actually started work to ask about that lovely accent. If you discuss a person’s ethnic origin during an interview and that person is not hired for the job, it’s very simple for the applicant to complain that she wasn’t hired because you knew she was not a local (after all the question pertaining to origin was asked) and you ended up hiring some one who was born and raised just over the hill.
Having knowledge that the applicant is from Greece, Spain, Holland or the Moon has nothing to do with whether or not the applicant is qualified for the position.

6) Do you really want to transfer to a job that has so much travel with those young children?

This is what we call a “patronizing” question. It’s going to be held to be discriminatory, especially if only asked of women.

If the employee is qualified to do the job childcare is the employee’s problem. Failure to transfer an employee because you had a discussion about child care issues is rather indefensible when the employee isn’t picked for the job and a complaint is made to your state or federal anti-discrimination office.

7) You’re fired, and I don’t have to give you any reason because your employment is “at will.”

In many states and situations, this statement is probably true. But, as they say, just because you can do it doesn’t mean you should do it. When you give no reason, you leave the door open for discrimination lawsuits. “You fired me because I am (insert: race, sex, age, disabled).” Trying to lean on your “at-will” defense in court will leave you looking quite vulnerable.

Giving a false reason isn’t much better. The popular “It’s because of performance” sounds good, until you’re in court defending years of “good” ratings, while “sorry, we eliminated your job” sounds good until a plaintiff lawyer asks you why you filled the same job the next week. Once the court concludes that you lied, discrimination will be the logical conclusion.

A 90 day introductory period is the time that is set for your determination as to whether of not the new employee is going to “make the grade.” Once you have passed the 90 day introductory period it is best to have documented reasons for ending employment. A best practice is to require that the employee submit to a couple of days of decision making leave. A termination subsequent to decision making leave is a powerful tool for the employer in avoiding charges of discrimination.

Send an e-mail if you’d like more information concerning decision making leave.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

This entry was posted on Thursday, March 6th, 2008 at 12:26 pm and is filed under Hiring, Human Resources, Legal. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.