Professional hiring practices can go a long way toward weeding out lawsuit-happy employeesProfessional hiring practices can go a long way toward weeding out lawsuit-happy employees

Lisa Jennings

Restaurant sales might be tanking across the country, but John Boggs’ business has tripled.

Boggs is an employment lawyer with the California-based firm Fine Boggs & Perkins LLC, and for years he has helped defend restaurant companies against what he describes as the “employee from hell,” or one who files a lawsuit in response to being laid off, fired or disciplined.

In today’s economy, with the “perfect storm” of downsizing, pay reductions and management change-outs, Boggs said the pool of potential plaintiffs has grown considerably. However, he added, there are ways a restaurant company can protect itself.

At the recent Western Foodservice & Hospitality Expo in San Diego, a trade show sponsored by the California Restaurant Association, Boggs outlined what he has dubbed “HR Best Practices” for hiring, or steps employers can take to avoid hiring the “walking-lawsuit” employee from the start.

An increasing number of plaintiff’s attorneys are looking for labor litigation they can take on, but typically they are paid on contingency and they will look for “easy targets,” Boggs said.

Companies with proper practices and policies in place will make litigation that much more difficult, deterring many plaintiff’s attorneys from filing cases against them, he said.

When it comes to hiring practices, the restaurant industry is notoriously lax, Boggs said. As a result the industry has become somewhat of a “crap funnel,” Boggs said, in attracting the worst of the labor pool.

In other industries, 93 percent of employers screen applicants with more than just the application, and 79 percent conduct background checks, he said. More than half screen potential employees with skills tests or behavioral interviews. Such practices are much less common in restaurants, however, Boggs said.

The first step employers can take to prevent hiring a bad egg is to make sure they are using a good application, Boggs said. Generic applications should be avoided. Instead, employers should use an application designed specifically for the industry in their state.

Once an application is submitted, managers should be trained to look for certain key indicators, or potential warning signs, such as:

Leaving blanks. Potential employees are hoping managers will skip over blank answers, but typically such omissions are in response to questions like, “Have you ever been convicted of a crime?”

Scratch outs. Such mistakes mean potential employees have written something they don’t want the potential employer to know, and often it’s information about a past employer.

Multiple or short-term employment stints or gaps in employment. That means job hopping, possible jail time, or simply that they tend to take time off, Boggs said.

Reasons given for leaving. Do they blame others for losing past employment? That could be a red flag, Boggs said.

“The No. 1 characteristic of a ‘walking lawsuit’ is a victim mentality,” he said.

Applications should also include requests for authorization to contact past employers, as well as language indicating employment “at will” to protect against contract claims, Boggs added.

The interview process is another area where employers can take steps to protect themselves.

Boggs recommended using the “velvet hammer” approach, which includes more listening than talking; asking open-ended questions; and avoiding steering an interview into queries that could be illegal.

He offered revealing questions to ask, and the typical responses a “walking lawsuit” employee might give. Among those:

“What are the skills an employee needs to get along and work cooperatively with co-workers?”

The “walking lawsuit” will typically respond with something like, “Just tell me what I need to do and leave me alone,” Boggs said.

“What would your previous supervisor say about you?”

The “walking lawsuit” would typically give excuses about why they didn’t get along with a previous employer.

“How were problems resolved at your previous job?”

The “walking lawsuit” would typically say problems were not resolved, and that a former employer handled such challenges poorly.

Boggs warned that employers should not ask questions that could be seen as illegal, including the job candidate’s age or birth date, marital status or child care arrangement, nationality, whether they have a disability, club membership, whether they are pregnant or whether they can work weekends.

Such questions, though seemingly innocent, could come back to haunt in the form of a discrimination complaint, he said.

Boggs recommended checking references of all credible job applicants and speaking to former employers.

Avoid making conditional offers, such as saying someone is hired pending the results of a drug test or background check, which could be seen as a false promise of a job, he said.

Boggs said his firm is affiliated with an automated human resources system that walks employers through the hiring process, and is approved for restaurants. For more information, see www.hotlinkHR.com .— [email protected]