HOTEL BUSINESS REVIEW
OCTOBER FOCUS: Revenue Management

Step One to Avoid Litigation - Hire Right

By John Mavros Attorney at Law, Partner, Fisher & Phillips, LLP | October 2019

This article was co-authored by Lauren Stockunas, Associate, Fisher Phillips LLP

The number one trigger for litigation is a termination. Employers who can avoid high turnover and frequent terminations will significantly reduce their chance of being sued, in addition to reducing their unemployment tax rate. As such, reducing employment litigation exposure starts even before employment, it starts with the application and hiring process. Hiring qualified employees who are a good fit for your hotel's company culture is a tall but critical task. This article will explore some best hiring practices to help your hotel implement policies and procedures that will put the hotel in the best position to hire right.

Applications

Usually, the first contact a potential employee has with the hotel is via the application (and job posting). Applications serve as the first tool for evaluating candidates and serve as the first step in the employment relationship that can trigger a lawsuit. Accordingly, an employer should always require applicants to complete and submit a job application. Not only that, but employers should always ensure that the application is signed by the applicant. Without a signature attesting to the truth of the information submitted, there is no recourse if the information turns out to be false.

Further, employers must examine the application carefully to confirm that the applicant filled out the application completely. All too often, employees are hired when they did not even include their full home address or failed to list contact information for references. Be sure to also confirm why they left their prior jobs. Some who says that they were fired after they were "unfairly accused" by their prior employer should be evaluated critically.

Interviews

Interviews are a critical step in the hiring process. There is only so much an employer can glean about an employee from a job application. However, conducting interviews can be a costly process because it takes a significant amount of time. One way to reduce costs is to pre-screen candidates with a shorter phone interview. A phone interview can be useful to assess the applicant's basic qualifications, motivations, and expectations for the position.

However, a follow-up in person interview is a critical step. Meeting with someone in person is essential to assessing that person's credibility and whether they will be a good fit for your hotel. While many interviewers say the best interviews are the ones that feel like a conversation, it is important for interviewers to not lose focus and to remember to ask questions that demonstrate the applicant's knowledge, skills, and ability.

Additionally, it is important for the interviewer to remember their role as a representative of the hotel. Conversations between friends and co-workers often revolve around spouses, children, pets, favorite restaurants et cetera, but sometimes knowing too much information can set the hotel up for a discrimination claim. For example, in many states, marital and parental status is a protected category. It would be illegal for a hotel to decide it wants a young hip culture amongst its employees and limit the number of employees it hires who are married with children.

This is not to say that interviewers cannot strive to engage in organic conversations with candidates; however, the reasons for ultimately deciding not to hire someone should be carefully documented to protect the hotel from an applicant alleging he or she was not hired due to their membership in a protected category. That said, here is a list of legal interview questions that will help steer the conversation away from protected categories:

Do you currently use illegal drugs?
Have you ever been fired or asked to resign from a job?
Do you work well under pressure?
How well do you get along with your current supervisor?
How do you think your current supervisor will respond to my request for a reference?
Are you bilingual, or do you speak Spanish?
Can you provide proof of authorization to work in the US?

Offers & Rejections

Once the hotel decides it wants to hire a candidate, it should continue best practices through drafting a formal written offer letter to the applicant. The offer letter should include the rate of pay, key expectations, the start date, and a clear statement that employment is at will. In most states, this letter should have clear language that the offer is conditioned, and contingent upon, completion of a background check. In California, for example, an employer cannot use conviction history as a factor until a conditional offer of employment is made.

In conveying rejection letters, it is critical that your hotel's staff is keenly aware of the protected categories in your state and does not decide not to hire someone based on membership in a protected category or tell an applicant he or she was not hired because of their membership in a protected category.

For example, perhaps an interviewer learns via Facebook that an applicant for a bartending position is a Seventh Day Adventist and assumes that the applicant will not work on Saturdays. Or, during the interview, the interviewer noticed that the applicant for the bellhop position had a limp and decided he would not be capable of performing the job. While these conclusions are not entirely illogical, in that it may be difficult for a bartender to take off on Saturday nights, it is critical that the interviewer does not make assumptions.

Other Risks

Although most employment lawsuits arise from a termination, applicants can also sue potential employers for a failure to hire. As such, best employment law practices should be implemented before an employee is even hired.

Discrimination

First, to avoid claims for failure to hire, hotels should assure that every question on its application is job related. The guiding question a court, the Equal Employment Opportunity Commission ("EEOC"), or a local agency will ask about each application question in a discrimination claim is: "Can the employer demonstrate a job-related necessity for asking the question?"

For example, age (over 40) is a federal protected category across the United States pursuant to the Age Discrimination in Employment Act and as such, employers cannot discriminate against employees, or applicants, based on age. On an application, rather than asking for an applicant's age directly or the applicant's date of birth, the only "job related" question that usually needs to be asked, depending on the industry, is "If hired, can you furnish proof that you are over 18 years of age?"

Sometimes potentially discriminatory questions will be less obvious. For example, asking all applicants whether they can lift more than 100 pounds on the application, because the hotel wants to assure every single bellhop can assist guests immediately with the heaviest luggage could have what's called a "disparate impact" on women and disabled applicants. While being able to carry luggage may be an essential job duty, it is unlikely that every bellhop needs to be able to lift at least 100 pounds. This question would likely be viewed as discriminatory as many women and disabled applicants who are truly qualified for the job would not be able to meet this overly high standard.

Salary History

Some states, such as California, have laws that prohibit employers from inquiring about an employee's salary history. The goal of these laws is to decrease the pay gap between men and women's (and those in other protected categories' pay). Be sure to remove this question from your hotel's applications if you operate in a state with a salary history prohibition to avoid future litigation.

However, note that although an employer cannot ask about salary history directly, most states still permit employers to ask employees about salary expectations which can help avoid wasting time interviewing applicants with incongruent pay expectations.

Arbitration Agreements

Finally, hotels should consult their labor & employment counsel as to whether requiring employees to sign arbitration agreements is in their best interests. In many states, requiring employees to sign arbitration agreements is permissible and can prevent a class action. Further, it can avoid a potentially outrageous jury award, reduce discovery costs, and enhance confidentiality.

If requiring employees to sign arbitration agreements as a condition of employment is advisable for your hotel, it is also important to remember that applicants should sign arbitration agreements as well.

Background Checks & Social Media

Many states and cities have "Ban the Box" or "Fair Chance" laws that prohibit employers from inquiring about an applicant's criminal history until after a conditional offer of employment is made. It is critical that hotels familiarize themselves with these laws and follow their proscribed procedures. For example, often employers rush the hiring process and submit the applicant's background check before making a conditional offer of employment; this is illegal in many states.

Additionally, some employers are too impatient to wait for the background check results to clear and start the employee in the interim. When the background check results finally arrive, the employer can be left with a newly hired housekeeper responsible for cleaning guest rooms and entrusted not to steal guests' belonging with a rap sheet of theft convictions. Where it would have been easy to decide not to hire this employee at the outset, even pursuant to "Ban the Box" laws, now the hotel is caught in a difficult situation where it may need to terminate the new employee.

The purpose of "Ban the Box" laws are to encourage employers to hire persons with criminal records with the societal goal of reducing recidivism. Especially in this tight job market, employers are encouraged to be open to hiring employees with criminal records; however, this of course has limits. As such, employers need to be careful to put themselves in the best position possible to have the ability to make the decision that is best for its business when it comes to hiring employees with criminal records.

While conducting background checks is advisable, it is essential that the employer follow any and all legally required procedures related to Ban the Box laws. When analyzing a person's background test results in a state with Ban the Box laws it is essential that the employer consider the following factors before simply rejecting an applicant with a criminal record: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and completion of the sentence; and (3) the nature of the job held or sought.

Additionally, although it is easier and more cost effective to Google applicants yourself and peruse their social media, best practice is to utilize a third-party vendor to pull social media profiles and information. The risk of bias that results from an employer evaluating social media independently is incredibly strong and it is extremely difficult to unknown something. For example, many social media profiles inquire about a person's marital status, religion, age, sexual orientation et cetera. Or, applicants may be members of networking groups associated with various political, racial, or cultural identifications. A third-party vendor can help pull relevant social media information about candidates without exposing the employer to facts that will risk creating bias.

Conclusion

Hiring decisions can be just as important as termination decisions. To increase the quality of a hotels workforce, consider calling labor and employment counsel to implement some of the above referenced policies and procedures to help "hire right."

This article provides an overview of the law and is not intended to be, nor should it be construed as legal advice for any particular fact situation.

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In the event that you have chosen to have your membership automatically rebilled, unless and until you notify HotelExecutive that you wish to cancel or terminate your membership to HotelExecutive, you hereby agree and authorize HotelExecutive's Internet Payment Service Provider to automatically renew your membership to HotelExecutive on a continuing basis and to charge your credit card (or other payment means you have selected) to pay for the ongoing cost of your membership. You hereby further authorize HotelExecutive's Internet Payment Service Provider to charge your credit card (or other approved payment means you have selected) for any and all purchases of products, services and entertainment provided to in, at, through or in association with HotelExecutive.

13. PRIVACY POLICY

The following is the Privacy Policy for HotelExecutive

We can be reached via telephone, email, or online at our contact page. When you visit our site we do not log any information regarding your domain or email address. Information Sharing: We do not share user information with any third parties other than via press release distribution as described below.

Hotel Newswire is a newswire service that distributes press releases on behalf of our users. If you decide to submit a press release for distribution through our system we will transmit your entire press release including any personal information therein contained to our media contacts and online distribution points including search engines. This is the only redistribution of your information that we engage in. Your submission of press releases through our system indicates consent with this policy. The information we collect during your registration process is used to notify users about updates to our service and inform users of any special events hosted by Hotel Newswire. This information is not shared with other organizations for commercial or non-commercial purposes.

Cookies: Our system requires the use of cookies to enable the user to log back into our website to access information from the newswire, without having to log in each time using the required username and password.

If you do not want to receive email from us in the future, please let us know by following instructions included in our communication with you. Users who supply us with telephone numbers online may receive telephone contact from us regarding their account, or informing them of new products and services available on the HotelExecutive website. If you do not wish to receive such telephone calls, please edit your account and remove your phone number from your account profile. This can be done from your user account menu.

Ad Servers: We do not partner with or have any relationship with any ad server companies. From time to time, we may use customer information for new uses not previously disclosed in our privacy notice. If our information practices change at any time, we will post the policy changes to our website to notify you of these changes and provide you with the ability to opt out of these new uses. If you are concerned about how your information is used, you should check back at our website periodically.

Upon request we provide site visitors with access to all information (including proprietary information) that we maintain about them. Users can access this information by logging in to their account.

Security: We always use industry-standard encryption technologies while transferring and receiving user data exchanged with our site. We have appropriate security measures in place in our physical facilities to protect against the loss, misuse, or alteration of information that we have collected from you on our site. We do not store credit card information in our systems.

If you feel that this site is not following its stated information policy, you may contact us.

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HOTEL BUSINESS REVIEW
OCTOBER FOCUS: Revenue Management