The old saying that “a stitch in time saves nine” is especially true for employers. Preventive practices can minimize or eliminate many employee lawsuits. An ounce of prevention can save millions of dollars in damages and legal fees.

Following are relevant tips for the employers to help reduce the frequency of all categories of employee lawsuits.

Recruitment and Hiring

All employers should strive for a “clean” hire, that is, one done purely on the basis of job requirements, without considering the applicant's membership in a protected group, either pro or con.

• Avoid discriminatory language when advertising job opportunities. For instance, an advertisement stating “young” or “recent grad” might discriminate against older job applicants, while terms such as “highly motivated” would not. “Salesman” would discriminate on the basis of gender, while “sales representative” would not.
• Have a specific job description providing the basic or essential functions of each position before advertising the position or interviewing any applicants. This will show that the person hired was the best qualified to perform the job in question or that a rejected applicant would have been unable to perform the job even with reasonable accommodation.
• In creating job descriptions, be sure they are reasonably related to the specific abilities to perform the job at issue and do not reflect the performance of the last person to hold the job.
• When interviewing, whenever possible, use a standardized form and ask essentially the same questions of all applicants. Be sure that any questions have a reasonable relationship to the job duties. Make a written record of each interview, and keep them in a secure location for at least five years.
• Do not ask applicants questions that would establish their membership in a protected class such as age, religion, or national origin unless it is essential to the job. For example, a religious educational organization can ask about the religion of a potential teacher, but perhaps not the religion of a potential maintenance worker.
• Do not ask whether an applicant is married or pregnant, has children, or is planning to have children. If the job would require travel or late nights, it is acceptable to ask if the applicant would have a problem meeting that requirement.
• Do not ask applicants about disabilities. Ask only job-related questions about the applicant's ability to perform specific job functions, and do not ask about things such as drug addiction, work-related injury, or use of sick leave. Employers can ask if an applicant will need any “reasonable accommodation” in the workplace to perform the essential functions of the job.
• Do not refuse to hire a person on the basis of presumed susceptibility to injury, if the person is otherwise fit for the job. However, employers are permitted to require physical ability where it is a bona fide job requirement, such as the ability to lift a certain weight.

Background Checks

Thanks to the Internet, an employer can find out almost anything included in a public record, with a few exceptions such as medical records, transcripts or disciplinary educational records, military records, or records sealed by court order.

• An employer that conducts its own background checks should ensure that the person doing the checking is aware of all state and federal restrictions on the use of the information obtained.
• When background checks are performed, they should be done in a uniform manner.
• Obtain an applicant's prior arrest record for a job only where security or personal responsibility for customers or clients is important or where the arrest may be related to the job duties. For example, if an applicant would be managing bank accounts, an arrest for embezzlement could be relevant.

Employment Contracts and Handbooks

All employees have some form of employment contract. The employer offers the job, the employee accepts and gets paid for doing it (offer, acceptance, and consideration – the basic elements of a contract). Written contracts or offer letters that set forth the terms and conditions for employment, including a statement that employment is at will, are preferable because they minimize the potential for disagreement regarding employer/employee expectations.