Brooklyn's Progress
August/September 2006

BY MARTIN GRINGER

As a labor and employment attorney for over thirty years, I have handled a few thousand cases where employees have claimed discrimination based on their age, sex, religion, disability, union activities, sexual orientation, national origin, and every other conceivable basis. In my experience I have found that, more often than not, employee plaintiffs’ claims result from situations other than discrimination on the part of their employers.

Employee plaintiffs often tend to be marginal performers at best. You will hardly ever read a profile of any successful executive in Fortune, Forbes or the Wall Street Journal who is a plaintiff in an employment discrimination lawsuit. For many employee plaintiffs, taking legal action against their employers makes up for their failure in their prior endeavors, and relieves them of any responsibility for their lack of success.

There are steps that employers can take to minimize the possibility of hiring a future employee plaintiff:

1. Interview suggestions: See if the applicant is willing to admit past mistakes by asking, “What was your worst mistake?” If the response is, “I can’t think of any mistakes I made,” you don’t have a good candidate for the job. Question the applicant closely about prior positions held and how they came to an end.
2. Check references: Many employers believe it is a waste of time to check references from prior employers anticipating they will get only “name, rank and serial number” from them. However, there are strategies for getting real information. Have the applicant sign a release in favor of the prior employers and enclose the release with your request.
3. Background investigations: You don’t have to hire a private detective to get information about an applicant. A lot of information is online. There are Web services available that can supply criminal convictions and prior litigation history for a reasonable cost. You can “Google” the applicant and see if they have entries on MySpace or Facebook.
4. Hire qualified applicants for the job: Hiring an individual who does not have the qualifications for the job is a recipe for disaster. When the unqualified individual is unsuccessful on the job, that individual will be looking for excuses for his failure.
5. Finally, if you hire someone who is not working out, cut your losses by terminating that employee as soon as possible. Failure to act promptly can lead to a conclusion that the employer condoned poor performance in the past and there may be other (unlawful) motives for the termination.

Martin Gringer is a partner in the labor and employment law firm of Franklin, Gringer & Cohen, PC, with offices in New York City and Garden City, L.I. Mr. Gringer may be reached at 516-228-3131, or at  mgringer@franklingringer.com.