Thomas R. Revnew
 Name: Askin’ For a Suit
 Product: Professional Business Attire
 Position Available: Sales Associate
 HR Department: Non-Existent
 Lawsuits: Imminent
FAILING TO INCLUDE
IMPORTANT
PRE-HIRE POLICIES IN
THE EMPLOYEE HANDBOOK
 Your Handbook should include all company policies
related to the hiring process.
 What type of policies? Here are the top five:
 Equal Employment Opportunity Policy;
 At-Will Employment Policy (Unless unionized);
 Anti-Harassment Policy;
 Drug and Alcohol Testing Policy; and
 Background Check Policy.
 Condition employment on:
 Truthful & complete application information;
 Willingness to accept job assignment; and
 At-will employment status.
 Provide applicants and employees with notice of
policies.
FAILING TO ESTABLISH
ACCURATE JOB DESCRIPTIONS
 Title: Sales Associate
 Hours: 40/week
 Education: 2 year degree from an accredited university
 Skills: Sales experience and a good attitude
 Position Description: The Sales Associate will sell
clothing to our customers.
 Accurate, complete and consistent job descriptions
provide a baseline defense for discrimination claims.
Inaccurate and incomplete descriptions invite
complaints, claims and lawsuits.
 The Hiring Manager/Supervisor should establish
qualifications for a specific job opening.
 These qualifications will set expectations from the
beginning.
 HR should carefully analyze each job description
(keeping in mind the duty to accommodate).
ASKING INAPPROPRIATE
INTERVIEW QUESTIONS*
(*OR WHEN THE HIRING MANAGER/SUPERVISOR DOES THE
ASKING)
 Work History
 Imma has 20 years of experience as a Sales Associate
selling high-end fashion in a retail store;
 Imma speaks multiple languages; and
 Imma has numerous references.
The hiring manager has called Imma for an interview
because she looks great on paper, but . . .
 If we do not hire Imma, she may claim it is because
of her:
 Gender;
 Age;
 Disability;
 Religious beliefs.
Questions
NOT to ask:
Questions
you
SHOULD
ask:
• Aren’t you too old for this job?
• Are you disabled in any way, shape
or form?
• Have you ever been arrested?
• Do you have children?
• Are you a U.S. citizen or an alien
who is legally permitted to work in
the U.S.?
• Can you perform the essential
functions of the job with or without
accommodation?
• Can you work the hours required
for this position?
 Abercrombie & Fitch: Failure/Refusal to hire
based on race and national origin=$50 Million
Awarded.
 Voices of America: Failure/Refusal to hire or
promote women=$543 Million Settlement.
 Winn-Dixie: Failure/Refusal to hire or promote
women=$33 Million Settlement.
INAPPROPRIATELY
CONDUCTING
PRE-EMPLOYMENT SCREENING
 You require Imma to get a medical evaluation:
 Before offering her a position;
 The hiring manager tells Imma it is because of her SAD;
and
 No other employee or applicant in the history of the
company has ever been required to undergo a medical
evaluation.
 Minnesota law requires that an employer must do
the following before requiring an applicant to
undergo medical testing:
 Provide a conditional offer of employment;
 Test only for essential job related abilities; and
 Test all persons conditionally offered employment for
the same position.
 You run the following background checks on
Imma
 You “investigate” her employment history;
 The Hiring Manager calls her “references”;
 You hire a third-party to run a credit report; and
 You check her criminal/civil litigation history.
 Fair Credit Reporting Act (FCRA):
 All pre-employment reports by third parties are probably covered by
FCRA.
 Four basic compliance steps under FCRA:
 Disclosure & written consent;
 Certification to Consumer Reporting Agency;
 Provide documents prior to adverse action; and
 Provide notice after adverse action.
 Minnesota Access to Consumer Report Act
 Must notify applicant in writing if subject of consumer report by
agency;
 Include a box on disclosure form to indicate request for copy; and
 If screening, must include disclosure & box on application form.
 USPS: Asking inappropriate medical history questions
to disabled veterans=$95 Million Settlement.
 Lawrence Berkley: Pre-employment blood test=$2.2
Million Settlement.
 First Transit and First Student: FRCA violation for
conducting unauthorized background checks=$43
Million Settlement.
FLSA VIOLATIONS
 Terms of Employment
 Salary of $41,600.00 to work at least 40 hours/week
(approximately $20/hour or $800.00/week);
 Because Imma is paid a salary, Askin’ for a Suit
concludes that she does not need to be paid overtime;
and
 To be safe, Askin’ for a Suit requires Imma to sign an
Agreement stating that she is not entitled to overtime.
 Requirements for Overtime Exemption: To be
exempt from paying overtime under the FLSA,
generally a position must satisfy the following
requirements:
 Pay more than $455.00/week ($23,660/year);
 Paid on a salary basis; and
 Performs exempt job duties.
 It does not matter that Imma signed an Agreement.
(1) Executive Exemption;
(2) Professional Exemption;
(3) Administrative Duty Exemption;
(4) Outside Sales Exemption; and
(5) Computer Employee Exemption.
 Outside Sales Exemption
 Primary duty must be making sales or obtaining orders or
contracts for services for the use of facilities for which a
consideration will be paid for by the client or customer; and
 The employee must be customarily and regularly engaged
away from the employer’s place or places of business.
 Wells Fargo: improper classification as Computer
Analysts=$12.5 Million Settlement.
 Auto Club: misclassification of insurance sales persons
as “outside sales” representatives=$19.5 Million
Settlement.
 Family Dollar Stores: improper classification of
employees as managers=$35.5 Million Award.
NOT IMPLEMENTING A SOCIAL
MEDIA POLICY
Imma
-Founder of the Religion of Imma
-Immaism
Immas
Imma
My job at Askin’ for a Suit stinks. I hate my boss. I
would like to slap her silly.
All followers of Imma, I had a premonition=our god
has instructed us to take communion (i.e. drink an
entire bottle of wine). Praise be to God!
 Askin’ for a Suit doesn’t have a social media policy and
Imma’s manager uses this information as the sole basis to
terminate her employment.
 During the termination “meeting”, Imma’s manager tells
her she is being fired because of the content of her
Facebook page.
 “Mere Gripes” are not protected.
 The National Labor Relation Board will likely protect
charges where the Charging Party relied on social
media to:
 (1) act with or by the authority of other employees;
 (2) initiate, induce or prepare for concerted group
action; or
 (3) bring group complaints to management’s attention.
 Stored Communications Act requires that employers
have permission to access private social media pages.
 Cannot discriminate based upon religion.
 American Medical Response: employee terminated for
stating concerns about boss on Facebook=Confidential
Settlement .
 Hillstone Restaurant: management reviewed a private,
password-protected, invitation-only group the servers
had created on MySpace=Confidential Settlement.
IGNORING AND
FAILING TO DOCUMENT
PERFORMANCE ISSUES
 A written record of verbal and written warnings.
 Clearly explain specific problems, tied to production or
standards.
 Give employee notice of the standards and apply the
standards consistently.
 Before termination, consider:
 Discipline short of discharge.
 Reassignment, transfer or removal of duties.
 Resignation in lieu of termination.
 Issue a last chance warning.
 Whatever the issue, document, document, document
(and apply your policies consistently).
 An excellent tool for managers!
 Include items such as:
 Does the employee know the rule?
 Is the rule reasonable?
 Did you interview other employees and/or third parties (if
necessary)?
 Are your notes accurate?
 Did you confront the employee (and, if so, did you document the
conversation)?
 Have you disciplined (or not disciplined) others in the same way for
the same behavior?
 Did you discuss the discipline with HR prior to issuing the warning?
 Did you send the paperwork to HR?
NOT TRAINING MANAGERS ON
PROPER TERMINATION
PROCEDURES
At-will employment means the employer or employee
can terminate the employment relationship for any
lawful reason.
Contract Theories

Oral or Implied Contract; and

Employee Handbooks.
Tort Theories

Intentional/Negligent Infliction of Emotional Distress;

Tortuous Interference with Contract;

Defamation; and

Negligent Supervision, Hiring and Retention.
Statutory Wrongful Termination

Violation of Public Policy (i.e. MHRA, Title VII, etc.);

Whistleblower; and

Retaliation.
 An excellent tool for managers!
 Include items such as:
 Manager and HR in termination meeting.
 Retrieve company property (keys, swipe card, laptops,
passwords).
 Eliminate remote access, cut off email and voicemail.
 Cancel any company credit cards.
 Notify appropriate people (employees, customers,
clients, etc.).
 Review benefits (COBRA notice).
 Last paycheck.
NOT FOLLOWING PROPER
POST-TERMINATION
PROCEDURES

Last Paycheck: In Minnesota, an employee’s last paycheck must be
issued with 24 hours (upon demand).

Reference Checks: generally an employer may provide the
following information about an employee or ex-employee without
liability: dates of employment, pay history, job description/duties,
training and education provided by the employer and facts related to
acts of violence, theft , harassment, illegal conduct.

COBRA Paperwork: Employer must notify plan administrator
within 30 days after termination (plan administrator has 14 days from
date of notice of the qualifying event to notify each participant and
beneficiary of the right to elect coverage).
Thomas R. Revnew | (952)921-4622 |
trevnew@seatonlaw.com