In the workplace, a good employee is typically someone that you want to build and foster a mutually beneficial relationship with – and that means getting off to the right start. Here are a few basic tips and useful definitions to help make sure that your relationships with your employees don't go sour – and to protect your business if they do.
At Will
California presumes employment is "at will," and can be ended by either party at any time, for any reason (or for no reason at all). However, if there is evidence that the employer and employee intended something different than "at will" – for instance that a job will last a certain length of time, or that the employee can't be discharged without "good cause" – a court may enforce that arrangement. Courts look at a number of things to decide whether the "at will" presumption is overcome in a particular case, including statements made to the employee during the interview and hiring process. Employers should be careful to avoid statements to the effect of "as long as you do good work, you'll have a job," or "this position/project will be for the next several months/years".
Terms of Employment
The interview and hiring process is the best place to clarify expectations, both the employee's and the employer's, about what the job requires. Misrepresenting the nature of the job in the hiring process can subject the employer to liability if an employee relies on the employer's statements. In fact, an employer can be criminally liable for false representations to an applicant that causes him or her to move from one place to another. Thus, employers need to be as specific as possible about a position's responsibilities and benefits. Preferably, such a description should be in writing (including that the job is "at will"), and should be given to the applicants during the recruiting process.
Reasonable Inquiries
An employer may be liable for negligence in hiring an employee who is incompetent or unfit, if the employee injures a third person. An employer should conduct a reasonable inquiry into employee background to limit this kind of exposure. Positions involving frequent driving, supervision of children or disabled persons, use of sensitive client information, and the like may particularly require background checks as to criminal driving records. What is "reasonable" varies under the circumstances, of course – and an overly broad background check may invade applicants' privacy. In general, as long as the employer's inquiries can be connected to a potential liability, the applicant has given his or her permission, and under some circumstances the employer notifies the applicant the inquiry has done, it should be reasonable.
While these tips are general, they can reap great rewards in better employee relations and avoiding liability should future problems arise. Please contact your legal counsel to review your employee handbook and to establish a hiring checklist if you do not currently have one in place.
Casey Christensen is a shareholder of Bullivant Houser Bailey PC, specializing in employment counseling and litigation, as well as general business litigation. Please e-mail him at casey.christensen@bullivant.com or visit www.bullivant.com for more information.
This article is not specific legal advice and does not establish an attorney-client relationship.
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