Pre-Employment Protections Ensure Staff Quality

By David O.Middlebrook

The following is a list of several pre-employment protections the church employer should use not only to protect the church from later litigation, but also to ensure that quality employees are hired from the beginning of the process.

Legal employment applications

The application's purpose is to elicit job-related information from an applicant to enable the employer to make an informed hiring decision. Applications affect how much information an employer can collect regarding an applicant's personal life and experiences.

There are many constraints placed on employer inquiries involving such topics as age, marital status, pregnancy, disability and others by federal and state laws. The church should be very careful about its pre-employment inquiries and have an attorney review its current application.

To preserve at-will employment relations, the application should prominently contain at-will employment disclaimer language. This disclaims that the application is an employment contract of any kind.

Please note that it is not a good idea to keep applications "on file." This is usually a poor practice and is, in fact, seldom utilized by most employers. Additionally, representing to a candidate that you are going to keep his or her application "on file" may lead to a charge of discrimination if it can be established that the church employer did not actually review previous applications that were kept "on file" when a new position became open. It is my belief that this is a poor practice and should be eliminated.

Who to interview

It is not necessary to have a face-to-face interview with every applicant who completes a job application. If an applicant does not meet the minimum job application requirements, it is not necessary to meet with them. As such, it is a good practice to develop a detailed set of minimum job requirements for each position that you are interviewing to fill. In this way, the church can screen applicants over the telephone and determine whether or not they meet the stated minimum job applications for the position that is being offered. Candidates who do not meet the minimum job application should be told so over the phone and thanked for their inquiry.

In the same way, if the church receives an application for employment through the mail with a resume, the church should attempt to determine whether or not the candidate meets the specified minimum job application requirements. If so, an appointment should be scheduled. If not, the applicant should be called and informed that they are not going to be considered for the position because they do not qualify.

Establish written interview protocol

As a general rule, the interviewer for the church should focus on questions that identify the applicant's ability to perform the tasks related to the job in question. In this connection the job description should be used as a checklist to determine whether the standard protocol should be developed for every interview conducted by the church. The interviewer should not ask questions that are not job related. Interview notes should be taken to help the interviewer to differentiate between candidates and to document the reasoning and rationale for selection decisions should a charge of discrimination be brought against the church. Note taking should be limited, however, to job specific issues. A memorandum should be prepared following each interview that summarizes the information that was elicited during the interview. This memorandum, along with interview notes, and the application should be retained in the event that a complaint is filed by the applicant claiming discrimination.

Federal law regulates the type of questions that are permitted during an employment interview. Prohibited lines of inquiry include questions regarding age, race, sex, disability and national origin. A church is permitted to inquire as to whether or not the applicant is a Christian.

References

Reference checks of applicants by the church represent another effort to compile and verify the most complete and accurate information regarding the applicant. Requesting detailed references from former employers is one precaution a church employer can take during the hiring process to limit its vulnerability to employment litigation. By failing to request references, the church may risk negligent hiring liability. References should be checked before the church makes a final job offer.

This area of the law, although a routine matter for most church employers, is filled with legal pitfalls. Most employers have adopted what is referred to as a "neutral reference policy" and will only release information related to the dates of employment, position and salary of the employee at the time of separation. Employers have adopted such policies to avoid lawsuits for defamation (libel and slander) related to an employee's work performance. It is often possible to overcome such neutral reference policies by obtaining a release from job applicants at the time they complete the job application that permits former employers, when contacted, to disclose information and opinions as they relate to the applicant's job performance. At the time of hire, a new employee should be required to complete a form that authorizes the church to release employment data to prospective employers.

Policy for rejection of candidates

Each candidate that was not selected for the particular job in question should receive a letter in the mail rejecting their application. It is not necessary and not advisable that the rejected candidate be informed of the reasoning for the rejection of their application. Rather, merely thank them for the courtesy of applying for the position.

Drug testing

It has been estimated that between 60 and 80 percent of the United States population is using a psychoactive substance either at work or at home. To select the best method for controlling drugs and alcohol at work, a church employer must ascertain the (1) workers' compensation claims for injuries, (2) customer complaints or injuries, (3) physical damage, (4) theft, and (5) poor job performance.

Some new risks are: (1) liability for accidents caused by an intoxicated employee sent home; (2) punitive damages for entrusting a company vehicle to an employee who has a DWI conviction but has never had a drink at work; (3) workers' compensation claims for addiction; (4) unemployment claims; (5) violations of ERISA; and (6) violations of OSHA.

Points to cover in every church drug testing policy:

• Prohibition of the use of drugs and alcohol
• Prohibition of the possession of drugs and related paraphernalia
• Prohibition of sale of drugs or alcohol
• Fitness for duty
• When to test
• Types of tests
• Who can require a test
• Chain of custody of test results
• Re-testing
• Who will do the testing
• Confidentiality
• Criminal prosecution
• Over-the-counter or prescribed medication
• Searches
• Compliance with applicable law
• Consent and release forms

Offer letters

If your church sends formal offer letters to applicants it wants to hire, you should be aware of the following things:

• The letter should contain no promises or guarantees
• The letter should contain at-will employment language
• The letter should contain language that the stated salary is "computational"
• The letter should state that the position is "subject to change at the discretion of employer"

If an offer letter contains premises of employment and salary without some limiting language as suggested above, the letter may be used to enforce an employment contract against the church.

The foregoing are only some of the pre-employment protections a church employer may utilize. If the church has question or concerns regarding its employment practices, it should contact an attorney to obtain assistance.

David O. Middlebrook is a partner in the Irving, TX law firm of Brewer, Brewer, Anthony & Middlebrook. He is an attorney for the American Center for Law and Justice of Texas, Inc.