Hiring and Firing Practices:
Keeping Your Church Out of Court


By Thomas O. Duvall, Jr., Arnall Golden Gregory LLP, Atlanta, Georgia

A. Locating and Screening Qualified Applicants

(1) Development a Consistent and Prudent Process

• Develop a consistent and prudent process for hiring employees to protect against allegations of discriminatory or negligent hiring, to protect from hiring a person who may be a risk or danger to others or may have a propensity for misconduct, and to create a personnel file for each employee to document the hiring process

(2) Use a Screening Process

(a) Job Descriptions

• have an accurate job description for each position that establishes the duties and responsibilities of the position
• the description should provide minimum qualifications to assist in screening applicants to avoid those who are not qualified
• the description should be updated as the position changes

(b) Written Applications

• every applicant should complete a written job application (which should be logged in and tracked) and the applicant should not be interviewed without completing the application
• the application should include questions relating to the job and background information which would be helpful in assessing whether the person is suited for the position and should not include any discriminatory questions
• the applicant should complete the application at the employer’s office and the employer should use a standard application, and should not accept a resume as a substitute for a completed application
• the employer should accept applications only for open positions and should not keep the application on file for future openings without some limitation as to length of time, such as 60 days

(c) Interviewing Applicants

• the interview should be done after the application has been completed and reviewed to confirm that the applicant has the minimum qualifications for the position
• the interviewer should develop standard questions to be supplemented by specific questions related to the particular applicant’s experience and qualifications
• the interviewer should make notes of the interview and the applicant’s responses as well as specific facts or behaviors indicated by the applicant
• questions which do not relate to the hiring process or which could be construed as discriminatory should be avoided

(d) Checking References and Background Information

• this is one of the most important parts of the hiring process and should be designed to make sure the employer can hire the right people, particularly where the applicant will be working with children or youth
• the employer should always require an applicant’s written permission before checking references, especially where the employer may want to contact the applicant’s current employer, and if the applicant requests that the current employer not be contacted before a job offer, the offer may be made conditional or contingent upon a reasonable reference from the employer
• when checking a reference, ask specific questions to find out what you want to know and be prepared to describe the basic job description and duties to see if that is what the applicant did at the former employer
• when checking references, maintain the confidentiality of what is said and do not disclose the information to the applicant
• the use of criminal background checks should be consistently applied within a particular class of job positions, should be done in accordance with applicable laws and can be performed in a variety of ways
• background checks may also include verification of previous employment, verification of licenses or degrees, or verification of other information regarding the applicant

EVALUATION POLICY

A. The Employee’s Performance and Work Should be Regularly Reviewed

• provide the employee with written job performance reviews, so that the employee receives both good and bad feedback about their performance on a regular basis
• reviews assist the employer in identifying the type of training and education the employee may need
• this provides a way to work with and rehabilitate employees or know when it is necessary to take disciplinary measures

B. A Written File Should be Maintained on the Employee

III. DISCIPLINARY POLICY AND TERMINATION

A. Focus on the Employee’s Problems and Behavior

• Do not focus on attitude, but on the behavior and the things the employee is or is not doing which hinders their performance
• try to be as objective as can be, so the problems do not become difficult to quantify

B. Develop a Progressive Disciplinary Policy

• Step 1. Oral Warning. First, the employer should give the employee an oral warning which should state the task or level of performance expected, a review of the performance and why the performance is inadequate, how the employee failed to meet the employer’s expectations, the steps the employer expects the employee to take to correct performance, a deadline for correcting performance, and the consequences of failure to improve performance. The person giving the oral warning should briefly document the oral warnings in writing as proof that the procedures were followed.
  
  
• Step 2. Written Warning. Second, if the employee’s performance continues to be less than satisfactory, the employer should give a written warning which should set out the same things as in the oral warning and should indicate that the employee’s job is in jeopardy if deficient performance continues. The written warning should be signed by the employee and it may be appropriate to have a witness present. If the employee refuses to sign the warning, that should be documented on the warning.
  
  
• Step 3. Probation. Third, if an oral and written warning do not solve the problem, the employer should consider probation as the next step. This should be documented and the employee should sign the documentation of probation. The probation should clearly state that termination is the next step. During the probationary period, the supervisor should regularly review the employee’s performance and communicate to the employee the employee’s progress or lack thereof.
  
  
• Step 4. Termination. Fourth, if a minimum specified level of improvement is not attained, the employer should terminate the employee. Before the termination, it is a good idea to review the employee’s file to see that the prior documentation is in order. The termination should be brief and to the point and should not be a time to discuss the problems. It should be done in a confidential manner and at a time when it will not attract attention. There should be a witness present and the termination should be documented. It is a good idea to conduct an exit interview to provide the employee with information about any severance benefits or rights.  

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