How to avoid hiring a 'walking lawsuit'

The Grindstone Flickr Photo Courtesy of Kathryn Decker-Krauth

Flickr user Kathryn Decker-Krauth
(MoneyWatch) The best legal advice I ever got is not to hire a "walking lawsuit," otherwise known as the salespeople who will come back to bite you in the end.

Employment lawsuits are not abstract concepts -- they have legs. They walk into your company, apply for a job, get hired, and wait for their opportunity to sue you. Often these employees have a spotty employment history, poor work ethic, bad attitude, and more than a few emotional problems.

Fishers & Phillips, a 70-year-old national law firm that exclusively represents management in labor and employment matters, offers the following advice on how to hire salespeople and ensure no lawsuits come strolling into your company:

1. More than resumes. Don't take a salesperson's resume on face value -- embellishing one's professional credentials has become commonplace. In other words, salespeople tend to exaggerate their accomplishments. Besides, when was the last time you read a resume containing the applicant's criminal history? Instead, have every applicant -- even for management and professional jobs -- fill out and sign a comprehensive employment application. The application should inquire about criminal convictions and why the applicant left prior jobs.

2. Interview aggressively. This is your chance to gauge the potential salesperson's credibility and interpersonal skills. Remember that a job interview is like the first date in a long courtship -- the applicant is never going to look any better, be more honest, or be more polite than during the interview. Too often in interviews, the employer attempts to "sell" the job to the applicant, instead of focusing on whether the applicant is really the best fit for the job. The sales pitch should be saved for last.

3. Don't be afraid to require a drug test. Pre-employment drug screens are legal and should be required. Obviously, applicants with drug problems are likely to be poor performers. They also could have a variety of other problems they may wish to blame on the workplace.

4. Check references. Don't just call the personnel department at the job candidate's prior employer. Rather, contact the salesperson's former supervisor and press for as much detail as you can get. If the applicant seems like a walking lawsuit waiting to happen, don't hire him or her, no matter how understaffed and desperate for sales help you are.

5. Watch your language. The job application should contain "employment-at-will" language, authorization for a background check, and an agreement to arbitrate employment disputes. Not only does this provide legal protection for the employer, but it also can help identify the walking lawsuit who may object to signing such an agreement. And please, read the application in detail before proceeding with interviews.

6. Listen to their language. Look, too, for key omissions, such as an applicant's "forgetting" to indicate whether he was convicted of a crime or fired from a job. (How many people really are uncertain about such things?) Also, look for victim-like responses to questions regarding why the applicant left past jobs. Answers like "mutual decision," "agreed to disagree," and "personality conflict" are commonly given by the walking lawsuit who cannot seem to get along with bosses and co-workers and who believes that all his or her problems are somebody else's fault. Screen out applicants with erratic employment histories and look for gaps between jobs that may signify jobs that didn't work out or even periods of incarceration.

Bottom Line: The Fisher & Phillips attorneys say that because walking lawsuits tend to view themselves as victims, it usually doesn't take long for them to decide they are being mistreated -- and then it's off to court. With some skill and effort, however, most employers can spot these people and screen them out of the hiring process.

Photo courtesy of Flickr user Kathryn Decker-Krauth

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