HR’s Worst—and Potentially Most Expensive—Mistake

Attorney experts from the Employers Counsel Network delivered hard-hitting answers to HRDA’s question about the most expensive mistake HR managers make. The remarks came at BLR’s Advanced Employment Issues Symposium, held November 17-18 in Las Vegas.

Refused Accommodation Requests

The number one mistake is untrained supervisors responding negatively to employees’ requests for reasonable accommodation, said Mark Schickman, a partner at Freeland Cooper & Foreman LLP in San Francisco. They just say “no” without any interactive discussion.

Even if you’re 95% sure there’s no hope of accommodation, you have to have the interactive discussion, he says. And once the refusal is made, and the employee complains, it’s too late to go back.

H1B Public Access File

For immigration expert Hector Chichoni, partner at Duane Morris LLP in Miami, the most common problem is failure to maintain the public access files for H1B determinations. The requirements for the file are extensive and it has to be available for inspection by the public with a day of its submittal. Many employers don’t have this file at all, Chichoni says.

Limiting Those Who Need to Know

The most common mistake Dinata James sees is failure to limit the number of people in the know about employees who make complaints, request leave, or take other protected actions. The most basic defense to a charge of retaliation is that the decision maker did not know about the activity. That’s the end of the retaliation claim.

When everyone knows about the protected activity, then any action taken by any one of those people will be interpreted as retaliation.

Documentation Failures

The mistake I often see is failure to document or failure to document well, says Molly DiBianca, who is with Young, Conaway, Stargatt & Taylor LLP in Wilmington, Delaware. Your defense falls apart if you don’t have documentation to back it up. But managers just don’t do it. You have to train them and keep after them.

Casual Online Reference Checking

Another mistake that DiBianca sees is casual background checks on social media. If you are going to do them, consider the following to reduce liability, she says:

1. Decide beforehand what you will be looking for, (e.g., illegal activity) and clear the list with your attorney. Keep the list to five items.
2. Limit your search to final candidates
3. Make sure the searcher and decision maker are different people (as James said, the best defense is that the hiring manager didn’t know about whatever impermissible information was uncovered)
4. Document your search, what you searched for and where you searched
5. Let the candidate know that you are doing the search
6. Share the results with the candidate if you are making a negative determination based on it, and especially if you have reason to doubt the validity of the information
7. Control hiring managers. One casual survey found that only 10 percent of HR departments were doing social media background checks but 100% of hiring managers were doing them!