Hiring and firing employees can be ticklish business these days. Labor laws generally require employers to bear the burden of proof should any law be broken, according to Gloria Hanson, human resources officer for D&D Farms, Pierre, SD. So employers must take extra care to follow the rules of labor law.
"If you break the law, it can be expensive for you personally as well as for your company," Hanson says.
Hanson offers solid advice to producers who hire employees, advice she learned from her years of experience.
'At Will' Policy Important A big priority for employers is printing a written "at will" employment policy. Hanson says this is very important to protect the employer's right to fire an employee.
"The 'at will' law says I'm an employee and if I decide I don't want to be here, I'm not under any contract (and can quit)," Hanson says. "The same 'at will' statement is true with employers. They can release an employee for any reason, just as long as the employee is not discriminated against."
Hanson recommends putting the "at will" policy in an employee handbook. Without the policy in the handbook, an employee handbook can be considered a legal employment contract, Hanson points out.
Also, do not publish a discipline policy in the handbook. Hanson says once it is published, it must be followed. Many employers follow a three-times-and-you're-out policy. But if an employee commits an act that warrants immediate firing, the written three-times policy could cause legal problems. Recruiting
When recruiting new employees through ads or discussions, employers must be careful not to discriminate against any protected class of people. And about the only class not protected is the white male under the age of 40, Hanson adds.
The following employment criteria are illegal:
* Specific age limits - You cannot talk about specific age limits like "17-25," "under 40," "recent college graduate," or "long-term, career-minded people." All these comments suggest a young person is being sought.
* Sex characteristics - Also illegal are comments like "men only," "herdsman" or "girl Friday." Hanson suggests substituting swine technician for entry level jobs.
* Religious preference - Do not use "Christian person." Hanson says you should not talk about religion at all.
* Physical characteristics - A statement like "good health" suggests discrimination against disabled people. Instead, if certain physical requirements are necessary, state them in the ad and uniformly follow them. But make sure the requirements are job related and included in job descriptions.
Job Descriptions Good job descriptions should include the primary tasks, skills needed, pay range and supervisory information, according to Hanson.
This is the place to put physical requirements needed for employees to complete the job.
Skills needed may also include English-speaking. But Hanson warns that it must be necessary.
Employment Applications Review your employment applications for any discriminatory wording. Hanson recommends eliminating any questions dealing with the following:
* Date of birth or date of graduation.
* Marriage status.
* List of arrests. You can ask for a list of convictions, however.
* Medical history.
* Absenteeism due to illness.
Hanson suggests hiring a screening service to look into a potential employee's records, like driving records, convictions and worker's compensation. Approval must be received from the applicant to conduct the screening.
Hanson says D&D Farms uses a screening service to double-check people they have given job offers. The offers are contingent on the results of the screening. The cost of a screening is about $8/employee.
The screening can save an employer from a negligent hiring claim. For example, a company hires an employee with a bad driving record. Then the employee has an accident driving on the job and kills someone. The employer can then face a negligent hiring charge.
Checking References "It is harder and harder to get references," Hanson says. "If you get stonewalled, go back to the potential employee and ask for names of co-workers to call."
In addition, many employers are asked to give references on former employees. Hanson says the employer must keep all answers job-related or a slander suit may result.
Also, if someone is terminated, she says to be very close-mouthed about it. Don't discuss it with other people or employees.
Sexual Harassment Sexual harassment is a concern in any workplace, including hog operations. Hanson says the unique environment in a hog facility with its employee showers and the livestock reproductive areas can lead to sexual harassment problems.
Sexual harassment, strictly defined, means unwelcome conduct at work based on gender. It includes threats, inappropriate physical contact, verbal comments (babe, sweetie), nonverbal conduct (leers, whistles, gestures), and environmental conduct (suggestive pictures or posters).
Sexual harassment can affect both men and women and does not need to be sexual in nature, she adds. It can include any harassment, such as racial and religious.
Hanson advocates halting any harassment before it starts. "I spend a lot of time with new employees talking about sexual harassment," she says. "I tell employees to treat their fellow employees like they would want their wife, daughter, etc. treated."
Employees also learn the appropriate terms to be used in the facility to prevent uncomfortable language use.
If sexual harassment occurs or is suggested, an employer is obligated to investigate and take steps to stop it. This even includes cases where the employee doesn't complain, but the employer is aware of the harassment.
An employer's obligation to halt sexual harassment extends to activities outside the workplace, Hanson adds. If the harassment involves employees who met at work and the harassment occurs outside of work, the employer must try to stop it.
Hanson emphasizes that an employer has more than a legal obligation to halt sexual harassment. Such harassment leads to a hostile work environment, which cannot be good for any business.
Drug Testing More and more hog operations deal with drug problems, just like corporate businesses. Due to safety concerns around equipment and adult animals, some hog businesses opt for drug testing.
Hanson says if random drug testing is conducted, it must include everyone, including upper management, even the president of the business. And the written policy should state an employee may be terminated if he/she refuses to take the test.
Termination Employers carry a heavy burden to fairly terminate an employee. First, a termination should never come as a surprise to an employee, Hanson states. This should be true even if the termination involves violence. All employees should know that violence is not tolerated. In other cases, the employer should have discussed problems with the employee at the time the problems occurred.
Hanson also recommends never summarily discharging an employee. If an employer is upset with the employee, send the employee home for the rest of the day. Then, the employer can think about the situation overnight and, if necessary, fire the employee the very next morning.
When an employee is in danger of being fired, the employer or supervisor should use verbal and written warnings including ways to improve the problems. The language should be clear that the employee's job is in jeopardy.
When termination is necessary, Hanson says employers should carefully consider its timing. She recommends against terminating someone, for example, who is one year away from retirement, three weeks after a worker's compensation claim or seven months pregnant. A discrimination suit against the company may result.
The employer should strive to preserve an employee's dignity and confidentiality during a termination. Hanson suggests terminating someone in a private office and always with one other person present. This third person is the employer's insurance against untrue claims made about the termination and the possibility of legal action.
In conclusion, Hanson says employers should hire their employees carefully and treat them fairly. When an employer is faced with difficult employee problems, seek expert advice. It can only save you money in the long term if lawsuits are avoided.
Federal laws prohibit the discrimination of people based on the following: race and color, ethnic identification, national origin, religion, sex, age, disability and veteran status. Any hiring practices that suggest such a discrimination is illegal and could put you and your business at risk of a lawsuit.
Gloria Hanson of D&D Farms lists 10 questions not to ask prospective employees, then provides alternatives employers can use. Just keep in mind - ask every applicant the same questions or that could trigger a discrimination suit.
1. Don't ask: Which is more important to you, a family or a career? Ask instead: We need people interested in a career. What are your career goals? (But, the statement must be true, and the question asked of all applicants.)
2. Don't ask: What arrangements do you have for taking care of your children?
Ask instead: Sometimes we have to work overtime. How do you feel about that?
3. Don't ask: Do you have transportation to work? Ask instead: Would you have a problem getting here by 6:00 a.m. every day?
4. Don't ask: Are you Hispanic? Ask instead: Some of our employees speak only Spanish, and the ability to communicate with them is essential to the job. Can you speak Spanish? Or: What languages do you speak?
5. Don't ask: Do you have a high school diploma? Ask instead: Reading instructions and doing simple math are important parts of the job. Are you willing to take an aptitude test? (Again, this must be a true statement and asked of all applicants)
6. Don't ask: Do you use drugs? Ask instead: All applicants are required to undergo drug screening as a condition of employment. Have you any objections? (Must be a true statement and asked of all applicants.)
7. Don't ask: You're very overweight. Can you get around okay? Ask instead: The essential job functions require a lot of walking, bending and lifting. How do you feel about performing these function? (Must be a true statement and asked of all applicants.)
8. Don't ask: We don't let women do heavy or dangerous work. Okay? Ask instead: We work around large, adult animals and automated feed systems. How do you feel about heavy or dangerous work?
9. Don't ask: Are you an American citizen? Ask instead: Are you legal to work in the U.S.?
10. Don't ask: How many days have you missed work due to illness? Ask instead: How many days of work did you miss last year?