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Legal Issues when hiring or firing employees

Whether hiring because the economy is good or firing because the economy is bad, employers can find themselves at the center of a discrimination claim based on their hiring and firing procedures. While there is no perfect way to protect your business from problems that can arise during the hiring and firing processes, the following guidelines can reduce the possibility of being the subject of a discrimination charge at the Equal Employment Opportunity Commission or the New Hampshire Commission on Human Rights.


It is important that you establish, document and maintain a consistent hiring procedure. Having such a procedure, and following it, will provide the basis for a defense against a hiring related claim. Usually, the process begins with an employment application. In general, the application should not ask questions about age (except to verify that the applicant is above the minimum age required by law for a specific job), sex or sexual orientation, race, color, marital status, maiden name, number names and ages of children and other dependants, religious creed, national origin, disability, pregnancy status, history of worker's compensation claims, absences at prior jobs, arrest records that did not result in convictions or military history unless the job requires such background.

The application should not inquire about the applicant's height and weight, except in specific job categories where guidelines have been established such as law enforcement. Similarly, the employer should not ask any medical questions. The employer should not seek information about organizations that the applicant may belong to such as political parties, although though it is permissible to ask about professional memberships that directly relate to the specific job in question. It is permissible to ask for a complete employment and educational history, and it is acceptable to inquire about gaps in employment periods.

During the employment interview, the interviewer should take care to only ask questions that have to do with the job. If the questions do not deal specifically with an applicant's ability to perform the responsibilities associated with the job, they should not be asked. The application should have an acknowledgment, that the applicant signs, stating that the information contained in the application is true and accurate and that including incorrect information will result in termination. The application should include a statement indicating that if hired, an employee's status is "at-will", a consent and release for contacting references, prior employers, schools, any drug or alcohol testing, or criminal background checks if required by the position.

Interviews provide great opportunities to learn more about the applicant's capabilities but can also lead interviewers into treacherous territory if they are not experienced. If you own a business and are unsure about how the interview should proceed, do not hesitate to speak with an attorney who can help you prepare appropriately.


There will be times when, even though you followed best practices during the hiring phase, you will need to terminate an employee. Termination presents a number of causes of action terminated employees may use to claim a wrongful discharge. Employers are advised to create policies and procedures that are applied consistently for all employees. Prior to firing an employee, the employer should document any problems, but in a manner that is consistently applied to all employees so that it does not appear that one specific employee was targeted. Regular performance reviews and the documentation of problems with all employees should be maintained in the personnel records. Additionally, a disciplinary policy should be followed with all employees and any discipline applied should be documented.

When terminating an employee, if the employer does not want to offer a long explanation to the employee, the reason it does give, should be real. Avoid making personal remarks that might humiliate the employee, or remarks that might lead the employee to think the termination is temporary. If you think the employee may become emotional, consider having a witness present. The employer should explain any severance pay, benefits continuation forms, profit-sharing procedures and other benefits available to the employee carefully and precisely.

The employee should be allowed to remove personal items at a time that permits the individual to maintain his or her dignity. The company should prepare a checklist of property that belongs to the company and these items should be accounted for, such as keys. The company should deny access to its computer system immediately upon discharge.

The termination should be documented for the personnel file immediately after it takes place. Attention should be paid to the details of the conversation and the reaction to the termination. Staff should be informed of the termination, and a simple statement is best. If the termination is for cause, it is best to keep that reason confidential and limited to an agreement with the employee that the company and employee simply part ways. Employees who have questions can meet with the company privately and customers should be contacted so they know how their needs will be met and by whom.

An employer who believes that the termination of a particular employee presents a problem for the company, should speak with an attorney prior to taking any action. For more information, please contact Emily Collinson at (603)524-4121.

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