HR Base Camp Roundup – August 10th, 2022

This week’s HR Roundup covers three common questions that many employers don’t even think to ask about until a problem has already presented itself. As our responses show, a solid and compliant HR strategy helps prevent problems before they start.

Here are the top Q&As from our HR Base Camp Facebook Group and HR Solution Center last week:

  1. What do you need to know about tattoo and piercing policies?
  2. What should you do when an employee decides to withdraw their resignation?
  3. What should I do if I found out a candidate has a criminal record by Googling them?

 
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What do you need to know about tattoo and piercing policies?

Most of my employees have visible tattoos and/or piercings and it has never been a problem before. I’ve never thought to have a policy covering this but could see how some tattoos and piercings could be problematic. Anything I need to know about tattoo and piercing policies from a compliance perspective?

This is an interesting question as it’s one of those places where you will generally have quite a bit of discretion as an employer.

There’s no legally protected category for people who are tattooed or pierced, so you can legally “discriminate” against people who violate your dress code in that regard (as long as you’re being consistent about it). 

There is a caveat, however, when it comes to tattoos and piercings that someone might have for a legally protected reason. If a specific tattoo or piercing is part of someone’s religious practices, then you need to consider accommodating it. In rare cases, tattoos can also be applied as medical alerts for serious medical conditions. These are obviously some extreme examples, but it would take something like that to make it unlawful discrimination, so long as your enforcement of that policy is consistent for all of your employees.

Outside of those protected examples, it’s okay for an employer to disallow visible tattoos and piercings outside of ear piercings, for example, but you need to make sure you’re consistent with enforcing that policy – you can’t excuse one person from the policy because they are a great employee or because you like them more as this could present legal risk for you and your business.

Similarly, having a policy that leaves these decisions open to the “discretion of management” can present similar risk as it leaves a lot of room for employees to claim discrimination when that “discretion” seems to vary from person to person.

If it hasn’t been a problem before but you are interested in adding tattoo and piercing considerations to your dress code or professional appearance policies, some employers will limit tattoos to those that are not distracting or offensive to other employees or patients/customers. That way, overtly offensive and discriminatory tattoos could be ruled a violation, along with any tattoo or piercing that caused patients, customers, or co-workers to complain to management. 

Generally speaking, if it hasn’t been a problem before but you want to issue a new or updated policy on tattoos and/or piercings, it’s a good idea to start by making sure your new policy won’t put any of your current team members out of compliance retroactively as this could cause morale problems.

Though this is a place where employers have quite a bit of leeway, it’s still important to make sure you leave the actual writing of that policy to an HR professional as minor nuances in language could cause a policy to be problematic for your business in a number of ways. This is another place where we work with our members to customize their employee handbooks to reflect their business culture while also being careful not to include language that could cause issues with respect to legal compliance or make consistent enforcement difficult or impossible.

 
Find a list of common illegal handbook policies in our Free Employee Handbook Guide. Click to download.
 

What should you do when an employee decides to withdraw their resignation?

I recently had an employee tell me they were resigning to take another job somewhere else. A few days later, that employee came back and said that they weren’t sure they wanted to take the new role offered to them for whatever reason and that they’d like to stay employed with my practice. What should I do with this employee?

This is an extremely common situation and it unfortunately can put employers in a very tight spot if not handled properly. But the good news is that, if the right safeguards are put in place from the beginning, this type of scenario can actually present a rather unique opportunity for employers. Here’s the breakdown:

Step One is to document their decision to resign right from the start. If they gave you anything in writing, save that to their personnel records immediately, even if it was done informally such as through a text message. 

If they expressed their decision to you verbally, be sure to write detailed notes regarding that discussion. We recommend asking them to give you something in writing, which could be a quick email or filling out a voluntary resignation form. But don’t get too pushy on this – we’ve seen it backfire many times. 

If they aren’t giving you something in writing, that’s okay. You can put it in writing yourself. Work with the CEDR Solution Center to draft a “confirmation of resignation” letter that confirms the information they gave you. Provide that to the employee, and save it in their file.   

Now that they’ve seemingly changed their mind about resigning, the ball is in your court in deciding what to do

If they’re a great employee, you might decide to keep them on, but you will want to be aware that there’s a chance that they will continue to look for other jobs, which will mean you’ll probably find yourself in this same position down the road. 

If this is the case, it might be in your best interest to speak to the employee to try and find out what made them want to leave in the first place. Maybe it’s something you can address internally that will alleviate that employee’s desire to seek out a new job – a more flexible schedule, for instance, or some other benefit provided by this other office that you can extend to this employee to keep them happy in their current role. Or you might find out that there’s nothing you can do to match that other offer (like if the new office is closer to their house), which will at least let you know to prepare for the eventuality of the employee leaving at some point down the road.

If the employee is not so great but you’re worried about the stress of finding a suitable replacement in the current hiring market, you could allow them to stay while you start looking for a replacement. Letting them go at some point due to their performance is likely what you were going to do anyway.  

The other option is to simply tell the employee you’ve already taken steps to account for their absence, and you are still accepting their original resignation. If you can’t see any way to make it work now that the employee’s loyalty has been put into question, if they weren’t a great employee to begin with, or if you think your practice will operate fine without the extra support that person provides, when the employee tries to withdraw that resignation all you have to do is tell them that you appreciate the sentiment, but you intend to honor their decision to resign. Clear-cut and simple.

We know many of you are wondering whether this employee would be able to collect unemployment if you separate from them even though they changed their mind. This is entirely up to the state to decide. If you have something in writing that confirms it was their decision to resign, that’s going to help. But an unemployment judge may still treat it as a termination. Either way, don’t let the idea of them collecting unemployment dissuade you from making the right decision for staffing your business.  

Of course, whenever an employee expresses an intent to resign, we would always recommend that you reach out to a qualified HR professional to make sure your bases are covered from the get-go. Though resignations usually create less risk than terminations, there are some situations in which a resignation can be risky, such as if they say they are resigning because they aren’t being paid properly, or when an employee feels as though they were forced to resign for one reason or another. CEDR’s HR Advisors are great at helping employers identify and minimize potential risks in all HR situations.

Plus, the HR experts in our Solution Center will take care of all of the necessary paperwork and confirmations on your behalf so you don’t have to worry about that little bit of busy work or stress over getting the language right from a compliance perspective! 

 
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What should I do if I found out a candidate has a criminal record by Googling them?

I recently interviewed a candidate that I really liked only to find out that they had a criminal record when I Googled them after our conversation. Should I just put a halt to this person’s candidacy? Should I still perform a background check and potentially hire them regardless? 

This “Googling applicants” thing is sort of a dirty little secret in the world of hiring. We know that employers are doing it, but it’s actually a big no-no from an HR perspective. 

Before we get into the nitty gritty of why it’s a problem, we want to start with a clear and unambiguous request: Please don’t Google your job applicants. And, if this is something you’ve been doing as part of your applicant research, please stop doing it. 

There. We said it. Now, let’s get into the explanation.

The correct way to check into an applicant’s background is to perform a background check using a trusted background check company (we recommend that employers use a company called National Crime Search). 

If something questionable comes back from that screening, you can use it to inform your hiring decision as long as the information is pertinent to that employee’s job duties. For example, you probably wouldn’t want to hire someone with a history of theft into a role that involves handling cash, whereas a DUI from ten years ago when a candidate was in high school is not likely to have much bearing on their ability to act as a competent dental assistant.

If you have questions about what to do with the information you receive back from the background check company, or anything else that comes up during the hiring process, you can always reach out to the HR experts in CEDR’s Solution Center for guidance.

Now, let’s get to the next question we know you’re all asking at this point: “Why shouldn’t I Google my applicants to determine if I want to hire them?” 

We’re glad you asked.

First of all, the internet is FULL of unreliable information. Your search for information on a candidate could turn up unfavorable content about people with the same name that you might mistake for information about your candidate, which could lead you to erroneously exclude excellent candidates. 

Or you might find information about charges that never resulted in a conviction, convictions that have been expunged by the state, or convictions that cannot legally be returned in a background check, all of which are actually illegal to factor into your hiring decisions.

Or you might find information written by an unreliable third party that is outright false or misleading. So, again, at the risk of sounding repetitive, please, for your own benefit, do not Google your candidates as part of your hiring process.

All of this being said, if you’re already in too deep – you’ve Googled, you found information you shouldn’t have, and now you’re not sure what to do – take a step back and ask yourself “Did my opinion of this candidate (or candidates) change based on my internet searches?” 

If so, make your best effort to look at everyone you’re considering objectively – Who is the most qualified? Who has the most experience? Who is likely to do the best job in the role? – and try to make your decision on who to offer the job to based on those criteria without considering whatever thing you learned online that you shouldn’t have. 

Once you’ve made your objective decision, let that candidate know that their employment is contingent on their ability to pass a background check. Then run the check the correct and legal way, and – because you don’t know what you don’t know – reach out to a qualified HR professional for help minimizing your risk and protecting your practice when it comes to things like this moving forward.
 
Make sure your next hire is a difference maker. Click to download CEDR's Free Hiring Guide!
 
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At CEDR, we help employers protect their businesses and build stronger teams. Because stronger teams build better workplaces, and better workplaces make better lives.

Have an HR question you need to talk through with an HR expert? Reach out to the Solution Center for expert guidance, or get your questions answered in our private, professional Facebook Group, HR Base Camp.

Aug 9, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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