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Tiffanny Brosnan, partner at Snell & Wilmer LLP  

Click Here for Tiffanny Brosnan's Bio

Friday, December 04, 2009
PDAs and hidden wage-hour violations
Tuesday, February 09, 2010
Spot a future plaintiff in your midst
Don't hire a future plaintiff
After representing employers in hundreds of lawsuits filed by disgruntled employees, patterns start to emerge. One pattern – many of these future plaintiffs should never have been hired. So, how to spot a future plaintiff? The following tips all come from reviewing the personnel files of plaintiffs.

An employment application is your primary tool. Require that applicants complete an application and fill out every line. Oftentimes the future plaintiff either does not complete an application or leaves it partially filled out.

Next, scrutinize the application. Is it internally consistent? Do all the dates match up? Are there any gaps in employment? Has the applicant bounced around from job to job or different careers altogether? Did the applicant take a demotion at some point, or is the applicant taking one to come work for you now? Is the applicant reluctant to provide personal information such as their home address and instead only provides a P.O. Box address?

To fully utilize the application as an effective hiring tool, you must verify the information contained in the application. Call the former employers and confirm the information provided. When you call, don’t ask for the person listed on the application (the future plaintiff isn’t going to voluntarily list someone who is going to tank them). Instead, ask for department managers, human resources employees – anyone who will talk to you. While employers typically only provide dates of employment, title and possibly pay information in response to reference checks, future plaintiffs routinely lie about even this basic information. Call the applicant at his or her current place of employment to see if he or she is still working there. I have seen plaintiffs lie about this fact, hoping that by labeling it a “confidential job search” you won’t think to call the current place of employment.

Consider hiring an outside company such as HireRight to run a full background check. Consider drug testing. In California, it is almost always illegal for an employer to randomly test current employees, so this is probably your only shot.

In my next installment: how to spot a future plaintiff who slipped through the cracks and is currently working for you.