As much as everyone hopes that an employee will always be the right fit for a job, sometimes employers need to discharge a worker. And unless doing so breaks a contract or is based on some unlawful reason (such as illegal discrimination), the dismissal will usually withstand any legal challenge. One of biggest mistakes an employer can make, though, is giving inconsistent reasons for dismissing the employee. This is because inconsistent reasoning hurts the employer's credibility and can lead a court to find that the stated reason was really a pretext to cover up unlawful discrimination. For example, in one recent case (Barnhart v. Regions Hospital) where a former employee claimed her firing resulted from unlawful discrimination, the employer claimed the real reason was her poor attendance and her failure to call in when she was going to be late or absent. However, other evidence suggested that the employer terminated her because of company restructuring. The judge ruled that this inconsistency called into question the true reason for the employee' termination, and he ordered that the case would need to go trial where the true reason for the dismissal would have to be decided by a court. Had the employer given a consistent explanation, the case likely would have been dismissed. For more information about employment law, please contact me at: [email protected]. The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney. Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA
Getting the Story Straight
Fair Credit Reporting Act -- a trap for the unwary
In a recent article, I noted how Minnesota's new "ban the box" law limits how private sector employers may check the criminal history of potential employees. Another trap for employers who conduct background checks is the Fair Credit Reporting Act.
Ban the Box
One of the more challenging aspects of hiring can be knowing when and how to conduct a criminal background check on a potential employee. In another article I noted how asking for such information during the application process is generally a good idea. However, a recent change in the law now prohibits Minnesota employers from inquiring into an applicant's criminal history until after the candidate is selected for an interview, or if there is not an interview, after a conditional job offer has been made to the candidate. In essence, this change now bans the "Have you ever been convicted of a crime?" box on all Minnesota job applications.
