Passive Recruiting and the EEOC

On July 25th the New York Times published an article titled "The Help-Wanted Sign Comes With a Frustrating Asterisk." That "frustrating asterisk" is that the unemployed need not apply. Sounds like a bad joke. Have you heard the one about the guy who couldn't get a job because he didn't have a job?

For those of you who aren't familiar with the term or practice of passive recruiting, it describes the targeting and recruiting of candidates who are not actively looking to move from their current employer. Consider them "non-job seekers."

The practice has surfaced in electronic and print postings with language such as “unemployed applicants will not be considered” or “must be currently employed.” The National Employment Law Project, a nonprofit organization surveying the labor market, found 150 ads requiring applicants to be currently or recently employed. Where were these listings? They were found on job sites such as CareerBuilder, Craigslist, Monster and Indeed.

Often it is implied that an unemployed candidate is inferior, or flawed. There are a lot of reasons why people are out of work. The recession is one of them. So, why should an unemployed candidate be perceived as more of a risk? While some candidates may have been laid off due to performance reasons, given the current economic condition, even the best employees are at risk of losing their jobs. Or, they already have. In this job market there are many, many talented people currently available. However, the stigma associated with being unemployed still exists.

Earlier this year at the request of approximately 50 members of Congress, the EEOC held a hearing to “examine the practice by employers of excluding currently unemployed persons from applicant pools.” It appears as though the EEOC is watching and there is now a renewed focus on this potential form of discrimination in recruitment and hiring.

If your company rejects the unemployed, because they are unemployed, be careful. What you are doing may result in a disparate impact complaint from the EEOC. While the practice may not (yet) violate discrimination laws because unemployment is not a protected status, change may be coming. The EEOC has yet to determine whether discriminating against the jobless might be illegal because it disproportionately hurts blacks and older people.

At the federal level, there are two bills dealing with the subject of passive recruiting. Rep. Rosa DeLauro (D-Connecticut), introduced a bill that makes it unlawful to publish a job posting that contains discriminatory language. The bill, identified as H.R. 2501, additionally prohibits employers from excluding from consideration to hire, or hiring, an individual because they are unemployed. “We have seen ample evidence that unemployed individuals are increasingly falling prey to discriminatory practices reducing their opportunities,” DeLauro said in a written statement.

The second bill, introduced into the House of Representatives on March 16, 2011, by Rep. Hank Johnson (D-Georgia), modifies Title VII by adding the unemployed as a protected class, falling under the auspices of the EEOC. Identified as H.R. 1113, it would “amend the Civil Rights Act of 1964 to prohibit discrimination on the basis of unemployment status.”

As an employer, it is always important to avoid discrimination in the recruiting process. What steps can you take? Well, here are a few suggestions:

• Use job descriptions which clearly reflect the KSA (knowledge, skills and abilities) that the employee will require in the position.
• Review your application form for potential areas of discrimination.
• Ensure job advertisements avoid any form of potential discrimination (age, sex, etc.).
• Have a standardized recruiting and hiring process to help diminish the chances of a lawsuit. First and foremost by ensuring that your recruiting/screening practices are job related and consistent with business necessity.
• Ensure your recruiting staff is familiar with discrimination laws.

In the 2006 EEOC document, Compliance Manual On Race and Color Discrimination, the EEOC stated "Who ultimately receives employment opportunities is highly dependent on how and where the employer looks for candidates." As an employer, keep your eyes on the how and where!

Diversity Is . . . An Old, Old Wooden Ship

I was having a bit of difficulty one night in pulling this particular blog together. I guess you can say I was experiencing writer's block. As I was mumbling about diversity, my son made some off-hand comment about diversity being “ . . . an old, old wooden ship." I stared at him with nothing more than a blank expression on my face and blinked. He then explained that the line was a quote from “Anchorman: the Legend of Ron Burgundy.” Well, I wasn't familiar with this particular piece of cinematic history so it was necessary that I experience that particular clip on YouTube. Yes, Ron Burgundy was definitely one clueless individual.

In a more realistic vein, let's take a step towards the non-fictional aspects of diversity. In 1965 an executive order signed by President Lyndon B. Johnson created the Equal Employment Opportunity Commission. The EEOC paved the way for minority classes and women to seek employment opportunities in the workplace. In response to the civil rights movement and the belief that education, sensitivity and awareness were key to reducing discrimination, organizations began providing diversity training to employees.

But, diversity isn't just a black and white issue anymore. Diversity encompasses race, gender, ethnic group, age, personality, cognitive style, tenure, organizational function, education and background. Diversity defines the way we are different. With diversity, we understand that each individual is unique and we recognize those individual differences. The concept of diversity encompasses acceptance and respect.

Is diversity training necessary? Yes. Beyond any legal requirements and necessity, diversity is a business reality. All employees bring their differences to the workplace. But oftentimes there is an “us versus them” mentality that must be eliminated. As an employer, you must ensure that all efforts are taken to reduce racism and sexism in the organization. The primary factors in hiring and promotion should be an employee's capabilities and abilities, as well as the embodiment of the characteristics you seek to represent your organization. A diverse workforce recognizes and values talent. It eliminates barriers and ensures that all employees are treated fairly and have the chance to reach their maximum potential.

A successful organization will understand that true diversity within the organization brings a wealth of benefits:

• Brings a greater variety of viewpoints into an organization, thereby providing a larger pool of ideas and experiences and encouraging the exchange of ideas.
• Broaden the scope of problem solving as well as improving the possibility of reaching a resolution to the problem.
• Creates an organization that is enriched with people from different cultures who bring different experiences and perspectives into the organization.
• May increase retention / reduce turnover both of which have a positive impact on the bottom line.
• May reduce the potential for litigation for EEOC violations.
  

You may think that prejudice doesn't exist in your workforce, but prejudices may be unconscious. According to Malcolm Gladwell in his 2005 book, Blink: The Power of Thinking Without Thinking, the author discusses “thin-slicing” and rapid cognition. Thin-slicing is our ability to gauge what is really important from a narrow piece of experience or information, a snap judgment. However, thin-slicing is an unconscious behavior. In his book, Gladwell examines how the ability to thin-slice may be corrupted by our likes and dislikes, prejudices and stereotypes. He refers to this as “unconscious prejudice, the kind of prejudice that you have that you aren't aware of, that affects the kinds of impressions and conclusions that you make automatically,without thinking.”

Remember, diversity involves how people perceive themselves and how they perceive others. These perceptions affect their interactions. Nobody ever said that diversity was easy. Creating, sustaining and valuing a diverse workforce is hard work. There will be barriers to overcome and these barriers can create a hostile environment. Creating diversity will take diligence and knowledge and patience.

The DOL Has An App For That!

Wage and hour violation claims present employers with the risk of substantial liability. In 2010, a survey of more than 1,800 senior legal and HR professionals was conducted. Of those surveyed, one-third of the respondents indicated that their organization had been hit with a wage and hour claim in the past year. Such claims outnumber all other discrimination class actions combined. While statistics for 2009 and 2010 aren't available on the Wage and Hour website (or I just can't find them!), the 2008 statistics reflect that $185,287,827 in back wages were collected in 2008 alone. That's $185 Million!!!

On May 9th, the Wage and Hour Division of the DOL launched its first application for smartphone platforms. The app (DOL-Timesheet App) is a new electronic timesheet that allows employees to track the hours they work (in addition to break time, calculating overtime, etc.) as well as assist employees in determining the wages they are owed. The bonus here is that it's a free app for employees and is available in either English or Spanish versions! (You can download the application from the Wage and Hour Division homepage at http://www.dol.gov/whd. While currently only available for iPhone and iPod Touch, the DOL is exploring updates for other smartphone platforms such as Blackberry and Android.

The DOL stated that the intent of the app is to provide workers with a tool that they can use to obtain wages they feel they are owed. "This app will help empower workers to understand and stand up for their rights when employees are denied their hard-earned pay," explained Labor Secretary Hilda Solis.

Yes, the application is a simple time-tracking tool. But, it has potentially dangerous consequence s for employers that do not have a reliable or accurate time-recording system in place. I can only stress how important it is for any employer to ensure that they have consistency, and accuracy, in their timekeeping mechanisms. For the employer, let's look at some potential areas of concern:

• How can an employer tell if a non-exempt employee is really working even though the person is not officially on the clock? Employers must be educated on what time must be counted as "hours worked" under the FLSA (including, but not limited to, compensable travel time, donning/doffing uniforms and/or safety equipment) so that such time is properly captured.
• Non-exempt personnel using smartphones or other PDAs for work-related purposes while off the clock.
• Employees may not know the proper way to round time if such rounding is applicable.
• What steps can the employer take when the non-exempt employee works unapproved overtime?
• Potential liabilities for back wages (and those nasty penalties) if employer calculations for worked time and/or over-time are incorrect.
• Employee records and payroll records don't match. How can the employer confirm that the employee was actually at that site and working?

There is a school of thought that the DOL timesheet app may encourage wage and hour disputes. My thoughts?

• Employers must always ensure that their timekeeping records are accurate.
• Require that employees verify the accuracy of time records used for payroll purposes.
• Take this a step further and ensure that employees sign off on any changes to timekeeping records made by their supervisors.
• Ensure that your managers are trained to enforce clear timekeeping policies.
• Most importantly, have an internal mechanism for addressing any pay questions.

The Equal Employment For All Act

In March 2010 I blogged about the HR 3149 Equal Employment For All Act. Under this bill, if it became law, the bill would limit an employers use of an applicant's credit report when screening that person for a job.

January 19th of this year, Rep. Steve Cohen (D-TN) reintroduced HR 3149 as HR 321, The Equal Employment For All Act. Again the aim is to "amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against prospective and current employees for purposes of making adverse employment decisions."

There are concerns about fairness in the use of credit reports. Since a percentage of minority group members in the U.S. with poor credit ratings is significantly greater than that of non-minorities, the EEOC has advised, and courts have held, that consideration of credit histories in making employment decisions can disproportionately affect minority applicants. As such, there is a violation of Title VII of the Civil Rights Act.

Under the bill, the use of credit reports in the hiring process would make exceptions and allow credit histories to be considered for jobs that require national security clearance, state or local government jobs, and certain jobs in the financial industry.

The question begs to be asked. Is poor credit an indicator of a person's character or ability to do a job well? People have been hit hard by the recession and have ended up with poor credit. In June the unemployment rate stood at 8.2%. Not having a job and money to pay bills can lead to bad credit as much as not paying your bills on time, even if you have money. It's a vicious cycle. People have credit that has been damaged by layoffs, company closures, medical bills or other factors beyond their control.

Some states are taking the initiative to limit the use of credit reports in the hiring process. Effective January 1, The Employment Credit Privacy Act went into effect in the state of Illinois. Signed into law by Illinois Gov. Pat Quinn, the law prohibits employers from using a person's credit history when it comes to getting a job. Washington, Hawaii and Oregon all have statutory requirements related to employer use of credit history.

Emergency Action Plans for Employers

June 1 marked the start of the hurricane season here in Texas. In 2010, Texas experienced $14.87 million in property damage and an additional $4.01 million in crop damage due to hurricanes.

Let's face it, 2011 is already fraught with devastating events across the U.S. Tornadoes ravaged Joplin, Missouri causing damage estimated at between one billion to three billion dollars. A massive blizzard hit Chicago, the third worst snowstorm in the city's history. If you look at the FEMA website (2011 Federal Disaster Declarations) you will find emergency declarations for flooding, severe storms, severe winter storms, Tsunami waves (California and Hawaii), landslides and mudslides. While I'm not expecting a Tsunami wave here in Houston any time soon, hurricanes, related flooding and fires are a real concern. With that being said, do you have an Emergency Action Plan in place?

OSHA (1910.38) requires a company, no matter what the size, to have an Emergency Action Plan in place. The emergency plan must “be in writing, kept in the workplace, and available to employees for review.” Note that employers with 10 or less employees may communicate the plan orally to the employees.

An emergency plan should address all possible emergencies that could happen, from electrical fires to flood, and how your employees are to respond. An emergency plan helps an organization take steps to protect its business, as well as employees, from harm. If a fire breaks out, your facility would have to be evacuated as quickly as possible. Do you have an evacuation plan in place? Do your employees know what steps to take? What steps should your employees take in the event of a bomb threat?

Under OSHA, the minimum elements of an Emergency Action Plan must include:

• Procedures for reporting the emergency.
• Procedures for emergency evacuation including type of evacuation and exit route assignments.
• Procedures to be followed by employees who remain to operate critical plan operations before they evacuate.
• Procedures to account for all employees after evacuation.
• Procedures to be followed by employees performing rescue or medical duties.
• The name or job title of every employee who may be contacted by employees who need more information about the plan or explanation of their duties under the plan.

Further, OSHA requires:

• That an employee alarm system must be maintained and have a distinctive signal for each purpose and comply with the requirements of employee alarm systems.
• Training for those employees who assist in the safe and orderly evacuation of other employees.
• Review of the emergency action plan with each employee covered by the plan. This review should occur when the plan is developed or the employee is assigned initially to a job; when the employee's responsibilities under the plan change; and when the plan is changed.

Emergency Action Plans are vital to protect employees from serious injury, property loss or loss of life, in the event of an actual or potential major disaster. The plan should describe the initial responsibilities and actions to be taken to protect all employees until the appropriate responders take over.

Be prepared - be safe!

The Parental Bereavement Act of 2011

On July 13, Sen. Jon Tester (D-Montana) introduced a bill that would allow parents grieving the death of a child to receive up to 12 weeks of job protected time-off under FMLA. The proposed amendment to the Family Medical and Leave Act of 1993 will amend Section 102 (a)(1) by adding, at the end, the following new sub-paragraph (F) “Because of the death of a son or daughter.” Under this proposed amendment, the leave shall not be taken intermittently or on a reduced leave schedule unless so agreed to by both the employer and the employee. Additionally,the employee will be required to provide notice as is “reasonable” and “practical”. This is one of several legislative initiatives introduced to enlarge the scope of the FMLA. Under Tester's Parental Bereavement Act of 2011, the death of a child would be treated like other life-altering event, providing the parents time to grieve.

This recent proposed amendment follows on the heels of “Bonding Leave” for adoption or foster care under FMLA. Under “Bonding Leave” employees may take FMLA before the actual placement for adoption or foster care of a child, if an absence from work is required for the adoption or foster care to proceed. This encompasses, but is not limited to, counseling sessions, court appearances, meetings with attorneys, travel, etc.

WashingtonWatch.com provided a widget so that individuals can express their views on The Parental Bereavement Act of 2011. The tally will update automatically as visitors vote. The widget has been provided below and I encourage each of you to express your views on this bill.



In closing, grief is complicated. For a parent the grief is overwhelming and nothing can prepare a parent for its enormity or devastation. This grief can give way to a vast array of conflicting emotions and responses. The Parental Bereavement Act of 2011 provides parents with time to cope with such traumatic loss.

Miniature Horses as ADA Accommodations?

Would you allow a Miniature Horse in your organization as an accommodation for an employee with a disability?

Beginning On March 15, 2011, only dogs are recognized as service animals under Titles II and III of the ADA. However, in addition to the provisions about service dogs, the revised ADA regulations address another "service animal" for which a separate provision has been added. This new revision addresses miniature horses that have been trained to work or perform tasks for people with disabilities. Entities covered by the ADA must modify their policies to permit miniature horses where reasonable.

Under these revisions, there is a four-factor test to assist organizations in determining whether or not a miniature horse can be accommodated in the facility. Those assessment factors are:

• Is the miniature horse house-broken;
• Is the miniature horse under the owner's control;
• Can the facility accommodate the horse's type, size and weight; and,
• Does the presence of the miniature horse compromise legitimate safety requirements necessary for the safe operation of the facility?

In closing, carefully review your company policies and practices regarding the use and admittance of Service Animals in your organization.