Supplemental materials for LEAP 2025 session The Hiring Workshop: Legal Strategies and Best Practices
Download Hiring: Craft Job Postings That Cut Legal Liability.
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See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Hiring Workshop: Legal Strategies and Best Practices
Employers increasingly rely on artificial intelligence-based software to manage the hiring process. Using AI algorithms to scan and screen job applications and résumés can save time and effort.
Plus, according to AI program developers, the software may even shield you from allegations that you discriminated against an applicant after discovering some protected characteristic—their age or an ethnic-sounding name, for example—when you reviewed application materials.
Turns out, that may not be the case. Critics of AI software claim discrimination may be baked into the algorithms. The EEOC recently launched an initiative looking into inherent bias in AI hiring programs. States have also begun questioning whether AI lives up to its promise of quick and non-discriminatory screening.
For example, in March, the California Fair Employment and Housing Council released draft regulation revisions that expand the definition of AI—in its terminology, automated-decision systems—to include any computational process that includes algorithms that screen résumés for terms or patterns, quizzes or other challenges that assess desired characteristics and online screening tests for cultural fit, personality or cognitive abilities. The regulations would forbid use of intentionally discriminatory programs, of course. But they would also ban AI programs that are facially neutral but have disparate impact on a protected class.
A federal court handling a California employment discrimination case just asked the California Supreme Court to decide whether pre-employment screening providers can be held liable for impermissible questions during medical screening exams. If the answer is yes, developers of AI screening and hiring software would almost certainly fall under the same category.
Advice: If you use AI software to hire, ask the developer if they have tested their programs for both intentional and disparate-impact discrimination.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session A New Day For DEI
Last summer, the Supreme Court decided in Students for Fair Admissions v. Harvard that affirmative action in college admissions violated anti-discrimination laws, so college and universities could no longer use it to decide who to admit. Although the case had nothing to do with employment law, the ruling triggered several lawsuits challenging corporate diversity, equity and inclusion programs.
These were essentially reverse-discrimination lawsuits in which plaintiffs accused employers of excluding them from hiring and promotions, fellowships and mentoring programs because of their gender, sex or other protected characteristics.
Some employers responded by opening fellowships and the like to all employees. Others eliminated DEI programs entirely. Still others are defending their policies in court, waiting to see what happens.
But a year after Students for Fair Admissions, other employers are taking different approaches, finding novel ways to diversify their workforces without resorting to specific hiring and promotion goals.
Here are some promising approaches:
Widen the applicant pool. Instead of looking for individual candidates with specific diversity characteristics, some employers are broadening the pool from which they seek qualified candidates.
For example, they’re ramping up efforts to recruit on college campuses where more diverse potential candidates study. Recruiting at historically Black colleges and universities (HBCUs) will increase the pool of Black applicants. Employers can do the same by recruiting at Seven Sisters colleges like Barnard, Vassar, Mount Holyoke and other institutions that are historically—and largely remain—women’s colleges.
Encourage word-of-mouth referrals. For decades, the old boys’ network was a recruiting mainstay. White, male hiring managers put the word out to their friends and colleagues to refer likely candidates. The predictable result: an applicant pool that trended decidedly white and male.
But the same word-of-mouth approach can work to increase applicant diversity. Consider providing referral bonuses for current employees who suggest applicants. Just make sure you offer the referral bonus to all current employees, not just those who fit a “diverse” demographic.
Consider foreign-born candidates. Asylum seekers and new immigrants who have work permits can be another source of diverse candidates. Your outreach efforts can include reaching out to organizations that help new residents find employment.
Just make sure your recruiting materials don’t specify that you prefer non-citizen candidates. That clearly would violate immigration laws that forbid discrimination based on citizenship status.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session A New Day For DEI
Last year’s Supreme Court decision in Students for Fair Admissions v. Harvard, which prohibited affirmative action in college admissions, unleashed a torrent of litigation that extends far beyond the halls of academia. Several conservative advocacy groups have filed numerous lawsuits against employers, arguing that the same reasoning the Supreme Court used to strike down affirmative action should also apply to employer initiatives designed to promote diversity, equity and inclusion in the workplace.
Especially under fire are programs like employer-sponsored mentorship programs that list specific protected characteristics as pre-requisites to participate. For example, several law firms have been sued for offering internships designed specifically to attract minority, disabled and otherwise marginalized candidates.
As a result, employers have begun reassessing their DEI programs—and sometimes abandoning them. However, many employers have responded by revamping and rebranding their DEI programs. Many no longer apply the term “DEI” to their initiatives. For better or worse, it has become a lightning-rod label for critics to attack. The hope is that avoiding it will attract less attention from outside groups inclined to file reverse-discrimination lawsuits.
More substantively, many employers no longer refer to diversity and equity as program goals, instead focusing on inclusion.
Approaches to inclusion
One approach is to emphasize the broad goal of attracting a broad pool of applicants from which to choose, rather than using numerical goals based on candidate demographics. Inclusive language is showing up in corporate documents such as shareholder communications, proxy statements and Securities and Exchange Commission filings.
Employers are also refocusing on broadening the places where they recruit talent. The desired result: to naturally and organically end up with a more diverse group of applicants from which to choose.
Many employers have responded by investing in employee resource groups aimed at supporting workers who are veterans and first-generation Americans, as well as those who face challenges around issues like balancing caregiving roles. Those distinctions are all neutral in terms of race and other protected characteristics. However, properly designed, such initiatives signal the employers’ commitment to helping members of underrepresented protected classes succeed in the workplace.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Documentation Essentials and Pitfalls: The Art of HR Record-Keeping
Download How to Document Disciplinary and Performance Problems here.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Documentation Essentials and Pitfalls: The Art of HR Record-Keeping
It happens to every manager: They sit down to prepare a staff member’s review and realize they can remember what the person has done only for the past few weeks. Or they let a single incident (good or bad) color their assessment.
Advise your organization’s managers never to rely on memory to evaluate an employee’s performance. Instead, create a simple recording system for them to use. Such performance logs don’t need to be complicated or sophisticated—a sheet of paper in a folder or a file on their computers will do. (Be sure it’s kept secure to ensure confidentiality.)
Note: A court will quickly dismiss a wrongful-termination lawsuit if performance logs clearly demonstrate a history of performance problems.
8 tips to capture the right info
Each employee should have an individual performance file. Include a copy of the employee’s job description, job application and résumé.
Advise supervisors to follow these steps when recording performance:
1. Include positive and negative behaviors. Recording only negative incidents will unfairly bias your evaluation. Make a point to note instances of satisfactory or outstanding performances, too. One way to ensure balanced reporting: Regularly update employee performance logs, instead of waiting for a specific incident to occur.
2. Date each entry. Noting times, dates and days of the week may help to identify performance patterns and problems that may cause them.
3. Write observations, not assumptions. Be careful about the language you use—your log could become evidence in court. Comments should focus only on behavior you directly observe. Don’t make assumptions about why the behavior occurred or judgments about an employee’s character.
4. Be specific. Example of poor documentation: “Employee was late three times last month.” Better: “30 minutes late on Feb. 5; cited traffic. 45 minutes late on Feb. 9; cited over-sleeping. Hour late on Feb. 23; cited car problems.”
5. Don’t use biased language. A good rule of thumb: Any statement that would be inappropriate in conversation is also inappropriate in an employee log. That includes references to an employee’s age, sex, race, disability, religion or sexual orientation.
6. Be brief, but complete. Use specific examples, not general comments. Instead of saying, “Ben’s work was excellent,” say, “Ben has reduced the number of data-entry errors to less than one per 450 records.”
7. Track trends. Note patterns and flag prior incidents of repeated behavior. Bring your observations to the employee’s attention only after you’ve defined a specific problem.
8. Be consistent. Don’t comment about one person’s behavior if you ignore the same behavior in other employees.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Can we set alternative schedules to avoid California’s overtime requirement?
Assigning some of your work to independent contractors has lots of benefits. You don’t have to carry them on your payroll, withhold taxes when you pay them or provide benefits. But working with independent contractors is not without challenges.
Chief among them is making sure you have properly classified them as independent contractors, a task complicated by the fact that there are several standards for determining independent contractor status.
However, there’s hope on the horizon for organizations that need to make sure they properly classify the contractors with whom they work. A new California law takes effect next month that could provide a classification best-practices model that might be applicable anywhere.
California arguably has the most restrictive independent contractor rules of all. Following them means you likely will pass any of the less stringent tests with flying colors.
The California Freelance Worker Protection Act clarifies who’s an independent contractor and how to treat them. The FWPA, which goes into effect Jan. 1, 2025, creates new requirements for organizations that use freelance workers or independent contractors to provide professional services. The law requires written contracts, careful record-keeping and timely payments.
If you follow these best practices—codified in the FWPA—you should stay on the right side of classification law no matter where you operate:
Get it in writing. No independent contractor agreement should be oral. The FWPA says all freelance and contractor agreements must be in writing. That is something every organization that uses independent contractors should do—every time.
Be specific. Contract documents should include specifics like listing the services the independent contractor will perform and what they will be paid for those services.
Invoicing. Be sure to set requirements for how and when the independent contractor will invoice for services. Include specifics about when they will receive payment and how they will be paid. For example, will you pay invoices within 30 days? Can the independent contractor arrange for direct deposit?
Record-keeping. Organizations using freelancers must keep a copy of the contract for at least four years. Longer is better.
Bottom line: If you use independent contractors, memorialize those arrangements with contracts and retain them for as long as practical.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Can we set alternative schedules to avoid California’s overtime requirement?
Q: We are a small business that provides temporary staffing to hospitals in California. California law requires paying overtime when employees work more than eight hours in a workday. A hospital to which we supply workers has asked us if our employees can work four 10-hour shifts with no overtime instead of five eight-hour shifts. I don’t think we can do that, as I am not sure employees can voluntarily waive their overtime rights. Can we agree to the hospital’s request?—P.C., California
A: The federal Fair Labor Standards Act requires overtime pay if an employee works more than 40 hours in any one workweek. However, not every state follows that rule. As you note, California requires overtime pay when an employee works more than eight hours in a workday.
But California also allows for alternate work schedules such as four 10-hour shifts, for a total of 40 hours per week. In that case, employees would not receive overtime for the scheduled days unless they worked more than 10 hours on those days. If they worked an extra shift that week, they would receive the overtime rate for that day. Note that employees must agree to the alternative schedule.
Online resource: Read more about California’s overtime rules here.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Handbook Workshop
Are you sure your handbook includes every crucial provision? From a legal perspective, there are certain must-have elements that belong in every handbook.
Here’s a checklist that will help you sleep well knowing you didn’t miss something important—and keep you out of court.
Tip: Print out this list and use it to guide a thorough review of your employee handbook.
√ A disclaimer that prevents the handbook from becoming construed as a legally binding contract.
√ An at-will employment statement that makes it clear no manager, supervisor or employee other than the CEO or his or her designee is authorized to enter into any employment agreement other than for at-will employment, and that employees can be terminated for any legal reason or no reason.
√ A statement reserving the right to modify, revise or otherwise change the handbook at any time for any reason.
√ A statement that you reserve the right to deviate from handbook provisions when necessary.
√ An FMLA policy, including the latest Department of Labor FMLA poster.
√ Sexual and other harassment policies and complaint procedures for reporting harassment, including alternative reporting methods other than up the chain of command.
√ A statement that the organization will always follow federal, state and local laws even if doing so is inconsistent with a handbook provision.
√ A written or electronic receipt system indicating each employee has received, reviewed and understands the handbook.
√ An anti-discrimination statement that commits to following federal, state and local anti-discrimination laws. This should prohibit retaliation for reporting discrimination and harassment involving any protected class and require all employees to refrain from discrimination and harassment. It should require employees to report any suspected discrimination and harassment they observe.
√ A statement that commits to following all federal, state and local wage-and-hour laws, including overtime laws.
√ A statement that employees understand they must report all hours worked, whether or not those hours were authorized.
Final note: Your handbook likely includes many other provisions, but these are the most essential ones. In addition to regularly reviewing your handbook yourself, periodically ask your attorney to review it, too.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Handbook Workshop
Your employee handbook probably includes a disclaimer stating that it is not a contract. But beware: A single disclaimer at the front of the book isn’t enough, especially if other handbook language appears to make promises you are not prepared to honor.
Recent case: Donald worked for the city of Plainview, Minn., for more than 30 years. The city’s employee handbook included this disclaimer: “The purpose of these policies is to establish a uniform and equitable system of personnel administration for employees …. They should not be construed as contract terms.” Later language added that the handbook “is not intended to create an express or implied contract of employment between the City of Plainview and an employee.”
The leave policy in the handbook stated, “When an employee ends their employment with the City, for any reason, 100% of accrued unused personal leave time will be paid up to 500 hours, unless the employee did not give sufficient notice.”
When the city fired Donald, he had accrued almost 1,800 hours of unused personal leave. He sued, claiming the city had to pay out the accrued leave.
The case went all the way to the Minnesota Supreme Court, which decided the disclaimer was ambiguous as applied to the very specific payout promise. It wrote that if “the City truly wanted to preserve the right to withhold accrued PTO … it should have been more precise and clear about that intent.” It ordered a trial. (Hall v. City of Plainview, Minnesota Supreme Court, 2021)
Advice: Search your handbook for any language that could conceivably be interpreted as a promise. Either revise it or get rid of it.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
