Minimizing the Risk of Employee Lawsuits

Can you avoid employee lawsuits?  Unfortunately, you can't.  But more often than not the employer is in control of the situation, such that it can "set the table" in a way that dramatically reduces the risk of a lawsuit or, if one is brought, positions itself in a way that allows for a strong defence and, hopefully, a dismissal of the case.

This is the first of what I expect will be three (3) posts dealing with each stage of the employment relationship:

1. Hiring
2. During the employment relationship
3. Termination

Let's start with some hiring tips (as always, I'd be interested in your tips as well, so comment or email me).

Hiring

It's been said that many (most?) terminations are the result of poor hiring decisions.  I'm not certain that this is accurate, but there are things that employers can do during the hiring process to start off on the right foot:

1. Ensure that your job advertisements comply with human rights legislation.
2. Have a standardized hiring package drawn up, including an application form, that asks the job applicant legally appropriate questions.  I've conducted many policy and documents audits for clients and, more often than not, the application forms and other hiring documents need to be revised to comply with human rights legislation. So, if you have an application form or hiring package, have it reviewed and make sure it's defensible if challenged.  The problem is that once you ask an "inappropriate" question on the application, you're saddled with that information and any subsequent decision (ie. not to interview or hire the person), could be tainted by that information (even if your decision not to interview or hire the person was otherwise entirely legitimate).
3. Take interviews seriously and ensure that interviewers are properly trained not only on interview techniques but on what they can and cannot ask during an interview.  While "free-flowing" interviews are nice in that they allow you to get a sense of "who this person is" beyond the resume, they are also dangerous as they can take you into dangerous territory.  You may want to develop some standardized questions and should make detailed notes of the questions asked and responses given.  Also consider "who" should be conducting the interview.  Again, once the question is out, any subsequent decision (ie. not to hire the person) could be tainted.
4. Conduct background checks (with appropriate consents, of course).  These include reference, criminal records and credit checks.  I've seen too many situations where the employer simply hired the employee without conducting appropriate checks, only to discover after the fact that the issues it is experiencing were present at the former employment.   When demand is greater than supply for workers, some employers get sloppy in the hiring process because they need employees (desperately).  This is a mistake - when demand is greater than supply even greater vigilance is called for in the hiring process.  Also there are principles of "negligent hiring" creeping into Canadian law and employers should be aware of.

Well those are some quick thoughts.  I'd be grateful for any others. 

Update: Rob Hyndman has a great suggestion: "try to have two of your people present in any interview".  As Rob says, if there's ever a dispute, you'll have a witness.  Many employers don't have the resources (or the inclination) to "tag-team" every interview.  Also, many employers are concerned that have more than one management person in the interview, the applicant might perceive this as piling on.  The fact is that if a complaint is filed by an unsuccesful job applicant, for example, and it turns into a credibility battle around what was said or not said at the interview, you'll wish you had two people in the interview taking contemporaneous notes, who can give evidence about what really took place.