Appendix A. The Legality of Performance-based Hiringsm[*]

Robert J. Bekken, Esq.

For over 30 years, I have represented employers in hundreds of labor and employment discrimination complaints and/or lawsuits. I have also advised clients on how to terminate problem employees by placing them on the George Washington Program and making them part of history.

There is a common theme in virtually every situation: the employee never should have been hired in the first place. The employer disregarded clear warning signs that the applicant would not be successful, and it was not a question of “if” but “when” the termination would take place.

The litmus test of a successful hiring protocol is that it deselects the problem employee. The focus of a successful hiring program results in hiring top talent.

What are the costs of hiring the problem employee? Managers spend more of their time parenting the bad employee, than focusing on developing and motivating new talent and existing top talent. It is axiomatic that it is easier to not hire an individual than hire him or her and face the legal risks of termination.

I have only represented five clients in allegations of discriminatory hiring. However, I have handled hundreds of cases involving allegations of discriminatory or unlawful terminations. The lesson learned is very simple: Rejecting the problem employee during the hiring process creates minimal exposure. The real exposure takes place when you hire the bad employee and subsequently fire him or ...

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