Preventing Lawsuits and Employee Turnover ~ NJ Law in Review

Preventing Lawsuits and Employee Turnover

By Bruce E. Gudin, Esq. Of Levy, Ehrlich & Petriello, P.C.

One of the problems facing the apartment industry today is employee turnover. With unemployment rates reaching the lowest levels in recent history, recruitment and hiring employees is one of the biggest challenges facing the industry. Intelligent owners and management companies are constantly recruiting to insure that when a staff position becomes open they have a list of qualified potential candidates to fill the slots. By using a clearly defined hiring plan, one can insure that their properties are staffed with motivated and competent employees.

It is well known that better hiring practices reduce turnover as well as potential lawsuits by disgruntled employees. The widest possible candidate pool should be explored. In searching for qualified employees, some use job fairs and school employment offices to post job openings, while others use agencies and even newspaper ads to attract applicants. The most effective recruiting comes from happy, successful employees whose positive attitudes about the company and the property lure others to join them. Happy, successful employees offer better tenant and vendor relations that naturally leads to tenant retention and lower operating costs.

The Job Description
Good hiring begins with a well-written job description. It should include the job function, duties, responsibilities and qualifications. The job description should inform an applicant of the details of the job parameters. Enumerating the specific skills and previous experience that are required should be clearly set forth. Some positions do not need any technical expertise or prior familiarity with, for instance, operating a rent subsidized project. Some positions do require such specific experience. There are some skills that are generally essential to every position. For example, even entry-level property-site office positions necessitate good communication skills. A well-defined job posting may help you avoid hiring an office worker who is unable to "write up" a simple service request from a tenant.

In order to avoid legal pitfalls, candidates should be asked to complete a standard employment application to establish general relevant information about the applicant prior to commencing the interview process. The application should elicit information about the candidate's education, employment history, interests, hobbies and references. The application should also include a section in which the candidate authorizes the verification of the information and states that the questions have been answered truthfully. According to New Jersey State Law, it is an unlawful employment practice to discriminate based on race, gender, color, religion, age, and/or sexual orientation. (N.J.S.A. Section 10:5-12) Thus, questions seeking any of this information are illegal and must be avoided.

The Application Process
In addition, the application process should give the employer other insights into the candidate. Unexplained gaps in employment may be signs of instability, laziness or other problems. A candidate who simply writes "see resume" on the application may, if hired, take inappropriate shortcuts, or may not follow instructions well. An unsigned application may signify hesitance to have references or previous employment verified.

The interview should be the most important part of the hiring process. In a limited period of time, the interviewer must determine if the applicant has the skills required to successfully perform the job for which they have applied. The interviewer must ask open ended questions that both provide information and test the applicant's ability to communicate. A good interview strategy is one that provides answers to the questions.

Can the applicant do the job?
Past performance is the best indication to future performance. Probe specifically:

What was the job?
How well did the applicant perform?
What strengths did they bring to the position?
What weakness kept them from being as successful as they might have wanted?

Does the applicant want the job?
Share the job description and skills assessment with candidates to ascertain why they think they will be successful if hired. Questions to be considered are:

Why do you want to work here?
What do you think will be the most challenging aspect of this job?
How will this job be different from others you've had?
How will your education or training help you in this position?

Questions to avoid
There are questions to avoid because they "sound" discriminatory and may run afoul of the law. The best way to avoid any perception of discrimination is to insure that you don't ask for information that can be used inappropriately.

With few exceptions, you cannot use age or sex as a barrier to hiring. Avoid asking what year the applicant graduated from school, was discharged from military service, or how old his/her children are. It is also an unlawful employment practice to hire based on marital status. Therefore, do not ask a candidate if she prefers Ms. Miss or Mrs.; or her maiden name. Don't ask a man for his wife's name.

An interviewer cannot ask an applicant's religious affiliation, but can ask if he/she is available to work on Saturday or Sunday if the job requires it. Avoid asking about membership in clubs, lodges or societies as the organization's to which the applicant belongs may be religiously affiliated.

The ADA Act
The Americans With Disabilities Act protects people from abusive hiring practices regarding health and fitness. An interviewer must avoid asking candidates if they have filed worker's compensation claims or how many days they were ill at their previous jobs. Health questions must relate only to the job description. An appropriate question can be, "Is there any reason why you would be unable to perform the duties outlined?"

The biggest pitfalls in interviewing are talking too much, over selling the company and the position, and reading "canned" questions to a candidate instead of asking probing questions.

After the interview
Once the interviews are done, an effective interviewer should verify the information on applications for those who might best fill the position. Previous employers and personal references can provide information about the applicant's attitudes and abilities.

Offers should be made to candidates whose experience and training best qualify them for the duties in the job description. Offers may be subject to completion of drug testing, physical, etc., as long as all employees are required to do so.

Similar to other areas of business, avoiding legal pitfalls in staffing requires planning and attention. Successful owners and mangers also know that legal counsel should be consulted before, and not after, an employment issue arises. You may feel free to call our office for a no cost consultation on your next legal matter.

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© 2000 by Bruce E. Gudin, Esq.

Opinions expressed in this article are not intended to be a substitute for specific individual legal advice.