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Friday, December 16, 2005

“Hey Donald… Does ‘You’re Fired’ Constitute Some Type of Employment?”

By Daniel (Danny!) Parrillo, Strategi LLC
San Francisco, CA
dparrillo@strategi.biz

Like others, I’m looking forward to the season finale of Donald Trump’s “Apprentice” show… Had this funny thought pop into my mind…

Just finished an HR Law course and remember chatting about what constitutes employment. Talked to a few professional associates – and asked them this question:

“When Donald Trump says ‘you’re fired’, isn’t he implying that there was some type of employment involved? How can you fire someone who’s not an employee?”

A member of my online HR Law class was John Koenig, an attorney with the Maryland based firm, Robinson & Koenig. He responded as follows: “that’s a good question! Certainly some type of implied understanding of employment – whether it was a employee, trainee, recruit or whatever… if not with Donald Trump directly – another alternative theory could be to say that they (the Apprentices) were fired from the show.”

Talked with Joan Ehrilich, District Director of the San Francisco EEOC. “It’s dramatic license in my opinion. He’s using it as a cliché`- and it’s very important and effective for television. He uses the language to make a point on the show. Anyone can use any form of terminology in interviewing or termination of employment. What someone does need to be concerned about is - was the terminology sensitive and done in a manner that would avoid lawsuits? Was an explanation given for the termination of employment or contractual services? Was an explanation given for not hiring that person? Was the explanation justified and not ‘just a smoke screen’ for another reason that could be interrupted as discrimination or illegal?”

Karen Mattonen C.A.C. of Advanced Career Solutions, Inc. is a major force in the staffing and recruiting circles I corral around in… and she reminded me that an employer could offer the job to anyone they seem fit and most states have “At Will” employment status. It is within the interviewing and hiring process itself where especially the candidates that didn’t get the job can interrupt actions as discriminatory and/or illegal activities.

Regarding the “Apprentices” and my good pal Donald… the legal contracts are in place for this specific example as well as the FCC because these people appear on television. It is my understanding that they are basically classified as “talent” and are technically “actors” – covered by all legal aspects of that industry.

But I think we all could agree that we deal with “talent” when recruiting and trying to staff technology-based requirements. We all know about the Microsoft lawsuit that spurred a huge amount of discussion on what constitutes an employee and a contractor – but do all staffing professionals in our industry know exactly what constitutes employment? (Check out the IRS Federal-State Reference Guide Publication 963, Chapter 4 “Determining Worker Status”). How about an understanding beyond the IRS SS-8 form? Does the SS-8 cover you, no matter what?

As recruiting and staffing professionals, I believe that we should be aware of the legal issues that confront our industry right now. Topics regarding overtime for contractors, use of H1-B candidates and converting them to employees… lawsuits about employers using contractors to substitute employees…. Know about the recent settlement made by Electronic Arts here in San Francisco for $15.6 million (October 2005)? And hopefully, the Bay Area Technology Recruiters Group and the Electronic Recruiters Exchange (www.erexchange.com) will be the venue for you to receive that information… (how do you like that for a plug ?)…

It’s all about how things are perceived during the interviewing and hiring process – as well as during employment. If an action, response or behavior during the interviewing process could be perceived as discriminatory or illegal, you’ve got a problem on your hands – and perhaps, legitimately so.

As staffing and recruiting professionals, it is imperative that we sincerely realize the importance of our role in the hiring and recruiting process… and that our clients and/or employer understands that how the process is conducted is imperative to the bottom line of any business (know what settling out of court for some recent lawsuits have cost technology employers recently? Know how much time dealing with an EEOC complaint takes away from your HR staff?)…

It’s heading back to an “employee market” and if prospective employers don’t conduct themselves in a proper, ethical and legal way – they may not only find an in-box full of EEOC complaints, but they will also find many quality, top-notch talent saying “You’re Fired” to that organization for prospective employment consideration for that person’s career (not just a single employment search).

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