Resumes and Acknowledgement Letters

On February 2, 2010 I blogged about How HR Fails in Recruiting. In that blog I stated. . . “If you want your company to have a positive reputation in the community, take a moment out of your day to close out the interview process with the applicant. So they didn’t make your shortlist. While they may be disappointed - they will be appreciative of the closure.”

I recently began recruiting for an admin role and as a result, have been wading through the avalanche of resumes that I have received. As with any recruiting process you are going to receive resumes from individuals that don’t meet the basic requirements of the position. But who can fault them for trying? In this situation I had 16 applicants right off the starting line that didn’t have the skill set I was seeking. So, as I always take my own advice, I sent them each emails thanking them for considering a career with Company X. Of the 16 applicants, 7 have responded back thanking me for simply acknowledging their application. One candidate, LF, sent the following email which I provide verbatim:

Thank you for your consideration, and your response. So many don't bother to respond, so it's comforting to know that someone really did take the time to consider me for a position to which I applied, and that you'll keep my application for a while should something else become available for which I could be considered.

Yes, applicants are appreciative of knowing that there is a living, breathing, thinking entity at the receiving end of the application process. With that being said, I have to give a big, hearty, thumbs up to Actuant Corporation. During their initial application process they respond back to each and every applicant as follows:

While we are unable to secure personal contact with every applicant, we make the following commitment to you:

1. Every effort will be made to match your background and professional skills against current and anticipated needs.
2. You will be informed as soon as a decision is reached if there is a next step in the process.
3. We cannot guarantee every applicant an interview, but we can promise that we will treat each person as we would wish to be treated ourselves.

Thank you for contacting Actuant Corporation while considering your next career move.

I recently read an article that said "If you send in an email and there is no response, translate this as they are not interested." Whether or not this is the case, I feel every employer should show common courtesy and a bit of class. A response to an applicant takes a moment of your time. The positive impression is forever!

EEOC Update

The EEOC received a record 99,947 charges of discrimination in fiscal year 2011, which ended Sept. 30, the highest number of charges in the agency’s 46-year history. EEOC staff also delivered historic relief through administrative enforcement—more than $364.6 million in monetary benefits for victims of workplace discrimination. This is also the highest level obtained in the Commission’s history. The fiscal year ended with 78,136 pending charges—a decrease of 8,202 charges, or ten percent. In previous years, the pending inventory had increased as staffing declined 30 percent between fiscal years 2000 and 2008.

“I am proud of the work of our employees and believe this demonstrates what can be achieved when we are given resources to enforce the nation’s laws prohibiting employment discrimination,” said EEOC Chair Jacqueline A. Berrien. “The EEOC was able to strategically manage existing resources and take full advantage of increased resources in the past two fiscal years to make significant progress towards effective enforcement of the nation’s civil rights laws.”

Due to EEOC’s enforcement programs in both the private and federal sectors, 5.4 million individuals benefitted from changes in employment policies or practices in their workplace during the past fiscal year. Additionally, EEOC’s public outreach and education programs reached approximately 540,000 persons directly.

The agency continued to build a strong national systemic enforcement program. At the end of the fiscal year, there were 580 systemic investigations involving more than 2,000 charges under way. EEOC field legal units filed 261 lawsuits—23 of which involved systemic allegations affecting large numbers of people; 61 had multiple victims (less than 20); and 177 were individual lawsuits.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available on its web site www.eeoc.gov.

Returning Heroes Tax Credit

On November 22, 2011, the President signed a bill into law that will provide tax credits to employers that hire veterans. Under the American Jobs Act, the "Returning Heroes Tax Credit" and the "Wounded Warriors Tax Credit" will provide tax credits from $5,600 to $9,600 to employers to encourage the hiring of unemployed veterans.

In October of this year, the unemployment rate for military veterans who joined the service since the terrorist attacks of September 11th was 12.1%. That 12.1% = 850,000 veterans who can not find work. Unemployment among the veterans of the Iraq and Afghanistan wars continues to climb as a result of the surge of returning soldiers.

It's time that we gave back!

OSHA and Black Friday

I’ll admit that I’m a shopaholic. While I do enjoy “stalking” those great sales, I avoid the Black Friday shopping crowds. (Unless you have been living under a rock, you know that Black Friday refers to the annual day-after-Thanksgiving sale among retailers.)

But for those of you that brave the Black Friday crowds, OSHA is concerned about you and your safety. In 2008, a 38 year-old New York Wal-Mart employee was trampled to death after a stampede of Black Friday shoppers rushed into the store. Almost one year later, in the wake of the Wal-Mart tragedy, OSHA issued crowd control guidelines for retailers.

"Crowd control is critical to preventing injuries and deaths," said OSHA Assistant Secretary Dr. David Michaels. "These incidents can be prevented by adopting a crowd management plan, and this fact sheet provides retail employers with guidelines for avoiding injuries during the holiday shopping season." (A link to the fact sheet is provided below.)

The Occupational Safety and Health Administration (OSHA) has issued guidelines that are aimed at helping store-owners, and their employees, to eliminate safety hazards. These OSHA guidelines fall into four different categories; Planning, Pre-Event Setup, During the Sales Event and Emergency Situations. Below is a brief review of those guidelines.

Planning: Have trained security or crowd management personnel where large crowds are expected. Create a detailed staffing plan designating the location of each employee. To ensure safety, determine the number of employees that are needed throughout the store, based on the size of the crowd expected.

Pre-Event Set Up: Have barricades or rope lines for crowd management in place prior to the event. The barricades should not start at the entrance to the store to allow for better control of the entrance. Have barricades set up with breaks and turns at regular intervals to reduce the risk of customers pushing from the rear and causing injury to those customers in front.

During the Sales Event: Staff entrances with safety personnel. Have a communication system (e.g., public address system) to manage the crowd, to communicate problems, etc. Announce both internally to employees and externally to customers when the doors are about to open.

Emergency Situations: Do not block or lock exit doors and/or restrict egress. Have an emergency medical response plan in place. Have first aid kits, etc., and personnel trained in their use, on site.

OSHA's role is to ensure safe and healthful workplaces for all employees. Even us shoppers!

https://www.osha.gov/OshDoc/data_General_Facts/Crowd_Control.html.

Age Discrimination in Employment Act

Company Fired Employee on His 70th Birthday Under Illegal Mandatory Retirement Policy, Federal Agency Charged.”

Earlier this week the EEOC issued a press release regarding a lawsuit they filed in November of last year. According to the EEOC suit (Civil Action No. 4:10-cv-04783 in U.S. District Court for the Southern District of Texas, Houston Division), Metallic Products Corp. had an unlawful mandatory retirement policy in place. The policy required that employees retire once they reached 70 years of age. The employee, Jeronimo Vidals, was advised prior to reaching his 70th birthday that he would be required to retire. Then his birthday rolled around and he was fired pursuant to the unlawful mandatory retirement policy.

The Age Discrimination in Employment Act was signed into law in 1967. Under ADEA, employers are forbidden to refuse to hire, to discharge, or to discriminate against anyone with respect to the terms, conditions or privileges of employment because of the person’s age. The law covers workers who are 40 years of age and older. And, the employer must have at least 20 employees to be covered by ADEA. It is important to note that age discrimination involves more than hiring and firing. It also can include violations such as salary reductions applied unfairly to older employees.

The EEOC and Metallic Products Corp. reached an agreement this month. That agreement cost Metallic Products $60,000 to settle this age discrimination suit. As part of the settlement, Metallic Products is required to rewrite all policies, handbooks etc., eliminating any reference to the unlawful policy. Additionally, a bit of training is in store for all personnel that make employment decisions at Metallic Products Corp. And I mean personnel all the way up the chain to their Board of Directors.

From a logical standpoint, as the workforce in the USA continues to mature, age discrimination is going to be of increasing concern. As an employer you should review your policies carefully. If you have a mandatory retirement policy in place, there is a BIG chance that it is going to be in violation of ADEA. There are exceptions, but they are rare, that an employer can force an employee to retire at a specific age (e.g. airline pilots*). Additionally, employers are allowed to apply age limits to certain jobs. However, it is often very difficult for an employer to prove age requirements. Such limit must be based on what is called a “bona fide occupational qualification (BFOQ). In this instance, for example, some physical aspects of the job could not be performed by people of certain age groups.

As an employer, you should have a clear HR policy that reflects the company philosophy, and actions for enforcement, on age discrimination. As with any policy, always ensure that it is consistently applied. Clearly communicate the policy to all employees, frequently, and ensure that your managers and supervisors understand, support and enforce the policy. Where necessary, provide training to all employees so that employees can recognize the various forms of age discrimination and respond properly. Review your policies, statements, job advertisements, etc., for any potential form of age discrimination. Ensure your applicant screening process and interview process is consistent with all candidates. Please remember, employers should always hire a person based on their skills and abilities. Nothing more, nothing less.

* In 2007 President Bush signed a bill raising the retirement age for commercial pilots to 65 from 60. (Public Law 110-135)

Felony Convictions and the Hiring Process

I had a question posed to me today; ". . is there a problem with stating because of the felony we can not hire them?" In this situation the manager terminated the interview immediately upon learning that the candidate had a criminal history.

What, as an employer, should your practice be? You can refuse to hire such an individual provided you comply with EEOC guidelines regarding consideration of those convictions. The EEOC requires employers to consider three factors:

1. The nature and seriousness of the crime.
2. How long has it been since the conviction?
3. What is the type of job at stake?

Employers should consider the following as a practice: "Affirmative findings will not automatically disqualify an applicant from employment, unless the prior conviction bears some reasonable relationship to the nature of the employment. Conviction records could be cause for rejection if their number, nature, and proximity would cause the applicant to be unsuitable for the position."

The TWC provides some excellent advice for the employers; "EEOC Issues with Background Checks: Basically, EEOC takes the position that because statistical evidence shows that a higher percentage of minorities than non-minorities has had financial or criminal history problems in the past, taking an adverse job action based upon such factors has an disproportionate and unfair impact (in EEOC terms, "disparate impact") upon minorities, and the burden will be on the employer to show a legitimate, job-related reason for taking the adverse job action.

EEOC expects employers, prior to turning someone down for a job or promotion who has had an unfavorable credit or criminal history report, to do an individualized job-relatedness determination. That means that before turning down someone for a job on the basis of a credit report or criminal history problem, the employer must be able to show that it considered the specific problem and determined that it would not be a good idea or prudent course of action to hire that specific person for a particular position."

In closing, ensure that your hiring practices are EEOC compliant!

FLSA Violation

Back on August 30th I discussed FLSA and Overtime. I stated that "there are other areas that may require compensation or overtime." One example was "preparation before shift or clean-up after shift."

Something in the news for you. Hilton Reservations and Customer Care agreed to pay $715,507 in minimum and overtime back wages. This was after an investigation by the U.S. Department of Labor's Wage and Hour Division. Seemed that Hilton owed the money to over 2,600 current and former customer service employees. The "former employees alleged that they weren't paid for work they did before clocking into their shifts. This included: booting up computers, opening programs, and reading pertinent emails." If the time was not included in their hours, the employees were missing out on overtime.

Employee Stress / Burnout

Futures Quest states “U.S. Companies are increasingly being accused of fostering a work environment which demands dedication, time and energy to the exclusion of an employee’s personal life.” When organizations focus on achieving maximum productivity, oftentimes at the expense of the employee, stress and burnout happens. Yes, there are certain jobs and professions that suffer more from stress and burnout than others. But in the “right” environment, and when I say “right” I mean “wrong," all employees face potential stress and burnout. Are you, (employer or employee) seeing this in your organization?

There are many factors that contribute to creating an environment of stress and burnout. We have all at one time or another found ourselves in an environment where there have been impossible and/or constantly changing requirements or demands made of us. The organization suffers from poor management, the employees from lack of direction, resources or support. When an employee perceives that the organization does not treat them with respect or dignity, demoralization occurs. Stress is a direct result. Stress, followed by burnout. The extinction of motivation or incentive. Yup.

When employees are driven beyond reason, stress and burnout occur.

How does burnout manifest itself?

• Negative attitude
• Persistent irritability
• Frustration
• Indifference to work
• Anger / sarcasm
• Exhaustion
• Increased absenteeism

Let’s talk about the impact stress has on your health. The boss calls you into the office and you know it isn’t going to be a pleasant conversation. Stress sets off an alarm in your brain. Your nervous system goes into overdrive and hormones start pumping. Your pulse and respiration deepen and your muscles tense up (clenched fists, tightened jaw). Your body is reacting to all of this in an effort to remove you from a bad situation. Remember that old “fight or flight” response? That’s what you are experiencing. We are all hardwired for this response. You, me and even Moe. It doesn’t matter who we are, our physiological response is the same. The problem here is that this response isn’t intended to be long term. And unfortunately, it often is. Our bodies are in a constant state of agitation and the impact on our health is easily apparent.

I went out to the CDC website and found a couple of interesting points that I want to share. The Bureau of Labor Statistics indicates that workers who must take time off from work because of stress, anxiety or related disorders, take about 20 days. Direct impact to the bottom line there folks. Also, health care expenditures are nearly 50% greater for workers who report high levels of stress (Journal of Occupational and Environmental Medicine).

Lifehacker.com recently blogged about “Burnout and How To Deal With It.” All I can say is I love his style. “For the individual it is imperative to think of number 1, if you find yourself in a situation like this, issues (and likely people) way beyond your control have dumped a crap pie in your lap. If at any point you have a CEO or senior manager sit you down to grill you about everything you did wrong in their eyes, leave immediately ….. seriously get out. You’re in a situation where you are sacrificing yourself and things in your life for the sake of an organization that obviously doesn’t care about you, so return the favour and just stop, and take care of yourself and ignore them. Unless you’re a single contractor or the CEO, it’s not your fault.”

Lifehacker sounds like a person that has had first hand experience with burnout.

In closing, stress and burnout = turnover. Those employees just resign and go elsewhere, seeking a better environment. And yes, that impacts the bottom line of any organization.

EEOC: Texas Road House & Bass Pro Litigation

Yes, the EEOC is watching!

Texas Roadhouse Litigation
The EEOC has sued the nation-wide Texas Roadhouse chain of restaurants for employment discrimination, claiming that Texas Roadhouse did not hire people age 40 and older because of their age.

If you believe you may have been denied a front of the house position -- such as server, hostess/host, bartender, etc. -- at Texas Roadhouse because of your age or if you have any information that would be helpful to the EEOC’s suit against Texas Roadhouse, contact the EEOC toll free at (855) 556-1129 or by e-mail at texasroadhouse.lawsuit@eeoc.gov.

Bass Pro Litigation
The EEOC has sued Bass Pro Outdoor World for employment discrimination claiming that it did not hire people because of their race (African-American or black) or national origin (Hispanic or Latino).

If you applied for a job at any Bass Pro location and think you may not have been hired due to your race or national origin; or if you have any information about the EEOC's lawsuit, please contact the EEOC at this special phone number toll free (855) 857-8747 or by e-mail at Basspro.lawsuit@eeoc.gov

That "Two Weeks Notice" Request

Your employee has handed in his/her resignation and has provided you with two weeks’ notice. What happens if you tell an employee to leave prior to the end of that two week notice period? Are you obligated to pay the employees? Oftentimes employers may have legitimate reasons for releasing an employee early. There may be concerns about security, confidential information, employee loyalty or even productivity (you know, that “short-timers syndrome”).

There are a couple of reasons to voluntarily pay for this notice period.

1. A termination action sends a negative message to the balance of the workforce. What is that message? Well, to the employee it becomes “you give your notice, you may be penalized.” In this instance, morale is hurt and your chances of receiving advance notices in the future may be diminished. If employees quit without notice there’s disruption to the business – you can’t transition the tasks/projects effectively to a secondary employee nor do you have any idea of the status of those tasks/projects, etc.

2. If you tell the employee to leave without pay, after notice has been given, this action may turn a voluntary resignation into an involuntary resignation. The down side is the employee may become eligible for unemployment benefits.

3. How about, it’s just plain good manners? If the employee has the courtesy to offer you notice and you're unable or unwilling to allow them to work out the time, it's rude not to provide them with the pay they would have gotten if they did.

Body Language and You

Getting ready for that performance review? Well before you do – have you looked in the mirror lately? No, not at your hair, or what you’re wearing. But at your body language. Do you know what your body language is communicating? Sometimes we are so intent on “reading” that other person that we overlook what impression we’re giving.

Body Language: Your legs are crossed and you’re shaking the leg on top. Whats the message? Well, you’re uncomfortable and nervous, or maybe bored and impatient. Keep the leg still. Show confidence and engagement during the meeting.

Body Language: Drumming your fingers or rubbing your face. The message is that you’re annoyed. This annoyance may be catching. The other individual in the room may become annoyed as well making for a negative experience for all! If you’re truly annoyed, try hiding it!

Body Language: Leaning back, arms across your chest or resting your ankle on the opposite knee (hopefully not the ladies!). The message here is that you’re judging the person in the room. Or, you’re skeptical. Like the example above, this can spark a negative reaction from the individual you are communicating with. Remember to keep your arms down and your feet on the floor.

Body Language: Too much smiling. While smiling is welcoming and is meant to put people at ease, sometimes it can create a perception that you’re not taking the other person seriously. Alternatively, that you’re laughing at them. Try, periodically, to have a more serious face.

Body Language: Pointing your feet or leaning your body towards the door. The message you may be conveying is that you have other work to do, you need to get out of the room, and you aren’t fully engaged in the conversation. Give the other person your full focus. Point your body towards them and show engagement in the conversation.

Body Language: Leaning back while clasping your hands. This type of gesture makes you appear completely disinterested in the individual and the conversation. And, if the perception is that you don’t care, the other individual won’t care. That conversation is pretty much worthless. Best bet? If you’re seated at a desk, lean slightly forward and keep your hands in your lap or on the desk.

Yes, body language communicates a lot. Make sure it conveys the right message!

FLSA Anti-Retaliation Provision

On March 22, 2011, the Supreme Court ruled that written and oral complaints are valid under the Anti- Retaliation Provision of the Fair Labor Standards Act. (See Kasten v. Saint-Gobain Performance Plastics Corp.) It was held that “the scope of statutory term “filed any complaint” includes oral, as well as written, complaints.”

“While the written complaint is clear, the oral complaint must also be “sufficiently” clear and detailed for an employer to understand it. Therefore, the content of the complaint and the context of the complaint, even oral complaints, must be clear enough to the receiving party; and such oral complaints are protected activities under Title VII.” Please bear in mind that as with a written complaint, an oral complaint becomes an actionable item and Human Resources must respond to it.

How does a retaliation case happen?

1. An employee complains about his/her civil rights under Title VII; remember; now oral complaints are valid.
2. His / her employment status is negatively impacted by a demotion, transfer, layoff, or termination.
3. With the adverse employment action, there is now a potential for a retaliation charge.

Be aware that courts have ruled that the "anti-retaliation" FLSA provisions are designed "to foster an environment in which employees are unfettered in their decision to voice grievances without fear of economic retaliation or reprisal.”

This statute applies to a wide variety of employer, retaliatory, actions beyond a simple termination case. Actions such as assigning employees to unpopular job duties or shifts, giving poor performance evaluations, less than standard or no pay raise, disciplinary actions out of proportion to standard and historical disciplinary practices, reduced job responsibilities, etc.

As an employer, ensure employees are trained properly with respect to handling employee complaints as well as the investigation procedures to promptly address any complaints. And no less important, review your policies!