Do Pretty People Get the Jobs?

There are different hidden issues that can influence the recruitment and selection process other than the qualifications and experience of the candidates.  Appearance is one of them.  There is considerable evidence that physical attractiveness impacts employment decision making, with the result that the more attractive an individual, the greater the likelihood that the person will be hired (Watkins and Johnson, 2000).  Similarly, other factors like the age of the candidate, facial expressions and attractive communication skills are effective too.

Research shows that beautiful people are hired sooner, get promotions quicker, are higher ranking in their companies, and receive extra benefits.  The benefit to the employer?  It turns out that attractive people often bring more money to their companies and therefore are more valuable employees.

Is there an link between the applicant's physical appearance, grooming, dressing style and the hiring decision by managers?  To quote my son,  "If you have two equally qualified candidates in a business environment, are you going to hire the pretty person or the not so pretty person?  You're going to hire the pretty person!  I want to shop with the pretty girl, not the pimply guy!"

But all of these practices of biasness can put an organization at risk for applying unethical actions. Making decisions based on the non-job-related factors is detrimental to the overall organizational performance.  And, employers must be cautions of the reputation of their business.

For just a moment let's reflect on American Apparel's disturbing beauty-based hiring policy.  But then again, Hollister and Abercrombie and Fitch also have the same sex-appeal based employment policies. Abercrombie and Fitch lost a class action lawsuit that claimed the organizations "look policy" was racially discriminatory.  The court found that a specific "all American" look was not necessary for the actual job in which the company was hiring, and the company settled the case for $50 million and agreed to change its "look policy" to hire candidates of varying races.  But, they did not face legal trouble for hiring attractive people.  They needed to clarify that "good looking" people come from varying races.

Given the legislation prohibiting employment discrimination based on non-job-related factors such as race, gender, ethnicity, age and disability, it is interesting that there is no legislation regarding physical attractiveness.  Because many of these protected factors tend to overlap with physical attractiveness or personal appearance, employers need to tread carefully.  An example of where personal appearance may intersect with protections under law include not hiring a person because s/he is obese (ADA) or a preference for hiring younger employees as opposed to older employees, or biasing a specific gender or race as more attractive.

"Ban the Box" Laws

Some employment applications have that pesky little box that screams "check me if you have a criminal conviction!"   Research has found that this one little question may automatically and unfairly eliminate some applicants from the hiring process.

When the box is checked, applicants are often immediately rejected for a prior offense that may have no bearing on the job or is so old that it's not relevant.  If the applicant doesn't check it and the employer runs a background check, he or she may be disqualified because they lied on the application.  The applicant is between a rock and a hard place.

While some Ban the Box laws apply only to public employers, it is quickly expanding to private businesses.  Six states (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey and Rhode Island) have passed laws that require private employers to remove any conviction-related question from job applications.   While each Ban the Box law is different, they all address when the criminal history question may be asked, what types of convictions can be asked about, how far back an inquiry may extend and what, if any, exceptions apply. 

In 2012, the EEOC recommended - as a best practice for all employers - removing criminal history questions from job applications, reserving such questions until later in the hiring process (such as after an in-person interview or after a contingent offer).  The EEOC guidance requires the employer to demonstrate that the criminal records restrictions are directly related to the job and that the applicants are individually assessed for the position.

Whether such a proposal becomes a law in Texas remains to be seen.  In the interim, follow EEOC guidelines with respect to your hiring process.   As an employer, we need to remember that these convictions or arrests may not accurately represent who the applicant is today.

Safeguard the Front Door

Great title, right?  In response to my recent blog on Candidate References, an associate forwarded an article to me for my reading pleasure.  While I can't identify who wrote it or when, I felt I needed to share a portion of it.  He/she did a fabulous job in writing this.  So, here goes .. .

"Rule one in minimizing risky behavior is to prevent questionable job candidates from ever becoming employees.  It isn't enough to study resumes closely; studies have shown that over 50% of them contain inaccuracies.  Basic controls include employment and background checks.  As a recent example, a simple background check would have saved the Yahoo board the trouble of ousting Scott Thompson, the company's fourth CEO in five years, because he falsely claimed a computer science degree.  A growing number of companies conduct behavioral and honesty testing to screen employees."

Paperwork people.  It's all about paperwork. 

Candidate References

Checking references is critical in the decision making process and oftentimes will assist the employer in cutting down on selection errors.  While applicants may distort their employment history and accomplishments, reference checking will allow you to assess the accuracy of their claims.   Most importantly, it will allow you to assess if the candidate can do what s/he claims to be able to do.  Be clear with candidates from the beginning that you will be checking references. (Bear in mind that some employers have internal policies restricting the amount of information provided, oftentimes limiting the information to dates of employment and role within the organization.) 

Create a standardized process for checking references.  Ask questions pertaining to the candidates previous position.  What responsibilities did s/he have?  Discuss the responsibilities of the new position and if the reference feels the candidate could effectively fill the role.  Were there attendance issues?  Is the candidate a team player?   Would the reference rehire the candidate?   In what capacity was the reference associated with the candidate?  Most importantly, should you hire the candidate?  Avoid any inappropriate questions relating to health problems, disabilities, children, child care arrangements, etc.  (For the professional level employee, refine your reference process to encompass topics such as leadership, employee relations, oral and written communication, managerial skills and decision making, just to name a few.)

 

Remember, a candidate's past performance can be used as a predictor of future performance.   Increase your success rate in the employment selection process by conducting thorough reference checks. 

 

To avoid any questions regarding your hiring methods, ensure you maintain detailed records of your reference checking activities.  These may be helpful should you run into a negligent hiring claim later.

Outside The Interview Process

We're all pretty much aware of what we can, and can't, ask during an interview process.  I mean, not everything is fair game.  Depending on the type of interview style or format in use, most employers have a standard list of questions that they use.    But even with the best interview processes we face flawed human judgement.

I don't quite remember where I ran across this, but below is an interesting list of candidate traits to keep an eye on during the interview process. 

• Arrive late for interviews or who get lost (not prepared)
• Bellyache about their current job (negative/disloyal)
• Describe every accomplishment as a personal feat (loner/non-team player)
• Speak before processing a question and its implications (careless thinker)
• Disregard/poke fun at your administrative staff (not a strong team player/disrespectful)
• Use diminutives to address junior staff/women professionals/their seniors (poor manager of diverse staff)
• Use the passive voice extensively in conversation (not willing to take charge)
• Cut others off before they have finished a thought (impatient)

As a closing recommendation, take the time to discuss the candidate with the receptionist.   How did the candidate interact with the receptionist?   What was his/her behavior like?  Pay close attention to the initial impression - whether yours or someone elses.   It may provide you with valuable insight!

Happy recruiting!

Is Gender Bias Alive And Well?

Gender Bias n. unequal treatment in employment opportunity (such as promotion, pay, benefits and privileges), and the expectations due to attitudes based on the sex of an employee or group of employees.  Gender bias can be a legitimate basis for a lawsuit under anti-discrimination statutes.

 

Gender bias begins at an early age.  From the pink or blue outfits children receive at infancy, the influence of toy selections, to how teachers respond to a child in school, or the books we read them at bedtime. (An April, 2011 study of gender bias in literature examined nearly 6,000 children's books published from 1900 to 2000.  Of those, 57% had a central male character compared with only 31% female protagonists.  Presumably animals of an indeterminate gender led the rest.)  So how do we respond to gender bias in the workplace?

 

First let's understand that gender bias is more subtle than sex discrimination.    Bias occurs because of personal values, perceptions and outdated, traditional views about men and women.  We may encounter gender bias in many forms and degrees.   For example, both men and women tend to view women who express anger more negatively than they view men who express anger.  Even when the members of both sexes use the same words and body language to express that anger.  Gender bias exists where men or women are evaluated or perceived differently depending on whether their actions violate expectations of how they should act or expectations of what behaviors are required for a role they have assumed.  Whether the subject of bias is male or female, the effects of gender bias can be devastating.

 

Beginning in as early as 1982,  state judiciaries began to address gender bias by creating a variety of research committees and task forces.  Since that time, attention around gender bias in the workplace has continued to grow in every industry.

 

Then:

"Gender bias exists in many forms throughout the Massachusetts court system.  Sexist language and behavior are still common, despite an increased understanding that these practices are wrong."  New England Law Review.  Volume 24, Spring 1990.

"The New Mexico Supreme Court is greatly concerned over manifestations of gender bias in the court environment within the State of New Mexico."  "In 1987, the State Bar of New Mexico established The Task Force on Women and the Legal Profession and requested that the Task Force examine the needs of women lawyers, their acceptance by the Bench and Bar in general. . . . . The Final Report, issued November 2, 1990, documented gender bias not only directed toward women lawyers, but affecting female litigants, witnesses, and court employees."

The State of Florida, Gender Bias Study Commission:  Executive Summary, found that "during it's two years of hearing and study, that gender bias -- discrimination based solely on one's sex -- is a reality for far too many people involved in the legal system.  (1990)

In 2011, a team at Yale University asked 127 professors at six U.S. research universities to judge the merits of college graduates.  The graduates were applying for a position as a lab manager before heading to graduate school.  While using identical resumes, of which half were obviously female applicants, the participates were significantly more likely to hire the man, and at a higher salary.  Interestingly enough, the bias was equally strong among both the female and male scientists and did not vary by age, race or discipline. (www.sciencemag.com)

 

Now:

"The Supreme Court's decision on the Walmart case - in which five justices, all male, sided with the company in denying 1.5 million female employees the right to pursue a class-action sex-discrimination lawsuit - showed a truly stunning obliviousness to the way gender bias actually plays out in the workplace."  The Daily Beast.  "The Supreme Court's Cluelessness on Gender Bias."  June 22, 2012.

 

MSLGroup currently has a class action lawsuit pending alleging gender pay discrimination.  The $100 million class action lawsuit was filed in February 2011 and represents women who worked at the agency from 2008 until the date of judgement.  Of the 33 total plaintiffs, two are current MSL employees.  One, Sheila McLean, is currently a SVP and a 12-year veteran of the firm.  The lawsuit alleges that MSL paid female professionals less; did not promote women at the same rate as male counterparts; and conducted discriminatory demotions, terminations and reassignments for female staffers during the agency's 2009 reorganization.

 

After all the steps we have taken, all the studies, polls, research papers, etc., gender bias is still alive and well in the workplace.  As an employer, you need to be aware if gender bias exists in your workforce.  Train your employees to identify it, and to acknowledge it.  Secondly, call attention to the bias.  Make a commitment to eliminating it in your workforce.

 

 Title VII prohibits discrimination "because of" an employee's sex. As an employer we may not take adverse action against an employee because of their sex. Sex can not play a role in any aspect of their employment including hiring, transfers, promotions, pay, disciplinary action, suspensions, and discharges. It's also important to understand that while Title VII was originally understood to apply only to women, that is no longer the case. It also prohibits discrimination against men. For example, when a male employee is denied a promotion in favor of a female employee, and the male can prove that the reason was "because of his sex," there may be claim for sex discrimination.

Effective Job Advertisements: A Bit Of Humor

For a job advertisement to be effective it needs to provide information that captures the interest of the best candidates.  And yet, it must avoid any discriminatory language that might violate federal or state laws.  The advertisement should provide enough information about the job, including the education, experience and skills that will allow the candidate to decide whether or not s/he is a fit.  For just a moment I want to poke fun at a few current job advertisements I ran across.

For the first advertisement, let's roll on over to Craigslist/Houston and look at the advertisement for a "National Director of Human Resources."  We all know that there are guidelines for employers to use during the selection process. These guidelines ensure that the information requested is of business necessity only and is job-related.  This organization wants a complete profile including a picture and a short video of the candidate.  Really?  Requesting that an applicant submit a photograph, mandatory or optionally, at any time before hiring is an unfair pre-employment inquiry.  Can you read potentially discriminatory?  Employer please take note, it is totally acceptable to request a photograph after hiring and if for identification purposes.

Example number 2 can be found on CareerBuilder.com.  A real estate organization in San Antonio is seeking an HR Department Manager.  The posting reads, "Human Resource experience is not required."  Okay, not a problem - if there was an educational requirement in lieu of experience!  This organization is requesting that the individual create policies and procedures and be responsible for employment law.  There is a long laundry list of responsibilities for the position. As a potential employer, you should ponder some of the basic requirements of the position.  Take the time to properly identify and develop a description of the required behaviors, abilities, skills, and knowledge of the position.  My 17 year old could apply for the position and, theoretically, couldn't be disqualified from the application process.  He does have the reliable transportation, a valid driver's license and vehicle insurance that is requested in the posting.  With a base pay of $45 - 90K, I'm sure he'd just love it. 

 

The last posting, back at Craiglist/Houston, advertises a "2-day HR Gig."  The potential employer is requesting a "very experienced HR professional (2-5 years)" to work with them on a two day engagement.  The job?  Represent the employer on a two day "introduction presentation/session" with a client.  The individual is coached and prepped on the company, then on day two, the individual presents the information to the client.  The compensation for this jewel of a job "will be interesting" according to the advertisement.  I'd run from this one.  But, if any brave soul accepts this position, I'd be morbidly interested in the details!  I think there's smoke and mirrors involved here.

 

Happy recruiting!

We'll Miss The Twinkies

Talks between Hostess management and the Bakery, Confectionery, Tobacco Workers and Grain Millers Union failed on November 20th.  If a favorable agreement had been reached, over 18,000 jobs would have been saved.  It is unfortunate, but Hostess brand began terminating most of its 18,000 employees last week.  This action came after Hostess won court approval to shut down and start selling assets.

CEO Gregory Rayburn said 15,000 workers would be fired as soon as possible so that they could begin receiving unemployment benefits.  The Court ordered the Company to implement a non-executive employee retention plan to ensure the Company has the necessary personnel to implement the wind down.  Approximately 3,200 employees will stay on temporarily to clean plants and begin to wind down operations.  Employee headcount is expected to decrease by 95% within the first 16 weeks.  The closure of 33 bakeries, 565 distribution centers, approximately 5,500 delivery routes, and 570 bakery outlet stores could take up to three months. 

WARN Act
In May, Hostess Brands Inc. mailed out WARN Act notices to its employees.  The WARN Act requires companies to give workers sixty (60) days notice before closing a facility or performing a mass layoff.  Spokeswoman Anita-Marie Laurie stated Hostess wanted to notify employees that a "sale or wind down of the company is possible in the future." 

On November 21st a former employee, Mark Popovich, filed for damages on behalf of himself and all employees laid off by Hostess.  "We believe Hostess violated the federal WARN Act as well as state laws.  These employees deserved better," said Charles A. Ercole, who filed the Complaint for Mr. Popovich.   Failure to give sixty (60) days advance notice violates the federal Worker Adjustment and Retraining Act. 

Hostess has a different viewpoint believing that the multiple notices issued throughout 2012 and the court declaration to layoff workers are sufficient to excuse it from WARN Act liability.

There are a lot of different versions as to who is to blame for the failure of Hostess and the loss of so many jobs.  Whether mismanagement or a union failing to make concessions, there are now 18,000 people facing unemployment.  The largest number of employees impacted are based in Irving, Texas.  I'm sad to say I haven't been able to find any information relating to job fairs for the Irving employees.    Texas, let's get moving on that shall we?  The Utah Department of Workforce Services and Ogden/Weber Technology College is hosting a job fair this Thursday for former Hostess employees. 

Hostess, previously with annual sales of about $2.5 billion, had been making 500 million Twinkies annually prior to the shutdown.  We'll miss the Twinkies. . . .

Cronyism or Extreme Social Connections?

Normally the hiring process is a relatively random process based on the selection of applicants.  And in the recruiting process, referral hiring is a common practice.   But there are times when the selection process is not so random or neutral.   What happens when the hiring manager is not totally indifferent to members of the candidate pool and the referral value of a candidate increases based on their social connection with the hiring manager?   Is this where an organization, or manager, potentially crosses the line into favoritism? 

 

In my last blog (Nepotism - It's All Relative) I discussed nepotism and the challenges it may bring to an office environment.  Skipping down that little favoritism trail,  hand in hand with nepotism, is cronyism.   Cronyism is a specific form of favoritism referring to partiality towards friends and associates.   

 

Have you ever worked in an environment where there's a bunch of "good ole boys?"   A group of individuals that are given an undue advantage but who don't necessarily merit this treatment?   Individuals that may be in positions where they are not even qualified to do their job?  In an environment where it's not WHAT you know but WHO you know, you are experiencing cronyism.  That favoritism can be exhibited in compensation, discipline, or even positions.  

 

Does cronyism undermine business effectiveness?  Unfortunately cronyism can create an air of entitlement for those employees who were hired based on their social connection.  They may feel as though company rules do not apply to them.  Additional negative consequences are that sometimes these individuals are under-qualified to perform their jobs (potentially promoted to a level of incompetence) and even pay scales may become distorted.

 

Referencing my earlier question regarding the practice of nepotism and whether or not it's ethical, here's something for consideration:

• One of the most basic themes in ethics is fairness. Logically, cronyism (or nepotism) interferes with fairness through the undue advantage of one person who may not merit such treatment.

Both can greatly undermine the effectiveness of an organization.  So, draw your own conclusion.

 

Always keep an eye on your hiring practices.   We all know that businesses are often thick with social connections.  But don't allow your organization to become too relationship-driven that you unknowingly violate Title VII of the Civil Rights Act by discounting highly qualified applicants.

Emotional Intelligence (Attitude Counts)

Is an employee's attitude more important than his/her skills?  A study by Leadership IQ found that 46% of new hires are either fired or disciplined within their first 18 months.  And in a staggering 89% of those cases, the reason for the action isn't incompetence, but attitude; poor motivation, bad temperament, or emotional issues.  Sometimes it's not about ability - it's about attitude.  Depending on what you read, sometimes the employees with attitudes aren't aware that there is a problem - it's just their way.  Is there a communication issue?  Sometimes it's not what is said, but the manner in which it is said.  So, is it a style issue? 

Your new hire has excellent skills, training and education.  And yet, they are not successful.  Perhaps the missing part of this success equation (High IQ = significant academic performance, professional and personal success) is Emotional Intelligence.

In a 2011 survey, CareerBuilder found that 34% of hiring managers placed a greater emphasis on Emotional Intelligence (EI) when it came to hiring or promoting employees.  71% of hiring managers valued EI in an employee more than IQ.  59% would not hire someone with low Emotional Intelligence.

Emotional Intelligence is an individuals ability to perceive, control and evaluate emotions.  It is the area of cognitive ability involving traits and social skills that facilitate interpersonal behavior.  It brings compassion and humanity to work.  It affects how we manage our behavior, navigate social complexities or make personal decisions.  It is our ability to use awareness of emotions to stay flexible and positively direct behavior.

To ensure that your new hire has what it takes to be successful, it's important to incorporate testing for Emotional Intelligence during the interview process.  What's the benefit of hiring an employee who can't recognize how their behavior impacts (or alienates) their supervisor, co-workers or customers?  As a manager, you need to identify those candidates that have well-developed emotional and social skills and who understand how their words and actions influence their colleagues. Where possible, incorporate behavior testing in your interview process.  Take the time to identify:

• The candidates' self-awareness and ability to self-regulate; 
• Their ability to learn from mistakes; and, 
• Their ability to read other peoples emotions and understand the impact of their behavior on their colleagues.

In closing, what's your Emotional Intelligence?

 

 

 

 



The 10 Most Common Legal Mistakes HR Makes

Business Management Daily recently ran this great article outlining common legal mistakes that "HR makes."  Well, those mistakes can be made by any employer, supervisor, and/or business leader out there.  Not just "HR."  While a lot of this is just plain common sense, we all get busy from time to time and make a mistake. 

 #1: Advertisements, Interviews, and Offer Letters

Mistake: improper language in job advertisements. Too many employers still use inappropriate terms — such as "girl," "boy," or "young" — in their job advertisements. This is particularly true when managers, rather than HR, write the ads.

Mistake: unlawful interview inquiries. Too many hiring managers ask about personal and/or protected characteristics during job interviews, which sets the employer up for a discrimination lawsuit if the applicant is not hired.

Mistake: inaccurate description of the job. Some hiring managers work so hard to get top-notch recruits in the door that they fail to be realistic with their description of the job. The unhappy employee will leave, and it will have been a shameful waste of the employer's time and money.

Mistake: inadvertent creation of contractual promises. Too many employers include language in their job offer letters that inadvertently creates an employment contract. For instance, mentioning a yearly salary implies a yearly contract.

#2: Wage and Hour Issues

Mistake: misclassification of workers. Exempt vs. non-exempt status: Finding and correcting these mistakes are an Obama administration priority. While there are many factors to consider, you're basically basing your determination on the employee's level of responsibility and/or training, and a salary test.

Mistake: mandating confidentiality of wage information. Prohibiting employees from discussing their wages is a violation of the National Labor Relations Act.

#3: Privacy Assumptions and Violations

Mistake: permitting an expectation of electronic privacy. Too many employers fail to advise employees to expect no privacy on their computers. If you asked employees, "Do you think the stuff you put into that computer is private?" you might get some interesting answers.

Mistake: improper electronic monitoring. Some states have statutes that require employers to give employees notice if they are being monitored electronically.

Mistake: inadvertently revealing private employee information. HR possesses a great deal of sensitive information about individual employees. It is your duty to keep that information confidential.

#4: Training and Performance

Mistake: failure to train supervisors. When supervisors are not trained, they're the ones who get you into trouble. They may say rude, racist, or sexist things, or be unintentionally discriminatory, and because they are in a supervisory position, the entire company is on the hook.

Mistake: misleading performance evaluations. If you try to discipline an employee for a performance/behavior problem that was never noted on their evaluation, your hands may be tied.

#5: Rough Beginnings and Sharp Endings

Mistake: sloppy start. Among HR's common errors in this area are: failing to submit the state notice of a new hire; failing to tell the employee the key terms and conditions of employment; and providing the employee with a misleading description of working conditions.

Mistake: sloppy finish. Regardless of whether a termination is voluntary or involuntary, always allow the employee to leave with dignity.

#6: Investigations

Mistake: failure to oversee supervisory investigations. As an HR professional, you know that timeliness and thoroughness are important in an investigation. But what about when a supervisor is the one investigating, not HR? It's still HR's responsibility to provide oversight.

#7: Record-Keeping/I-9 Issues

Mistake: failure to document past practices. Courts love to know not only whether the treatment of an employee was against the law or company policy, but whether it was in line with past practices.

Mistake: failure to comply with Form I-9 requirements. Failure to complete the I-9 form properly and failure to keep the form in a separate file are common mistakes employers make.

#8: Breakdowns In Communication

Mistake: failure to keep employees in the loop. Forgetting to notify employees about policy/procedure changes, outcomes of investigations/discipline issues, or unsatisfactory behavior or work quality can be a costly slip-up.

#9: Accommodations

Mistake: failure to explore accommodations. "Accommodation" can be defined as "a determination in favor of the employee." Employers should explore accommodation options when an employee: has a disability, is pregnant, is called to active military duty or has a family member called to active military duty, or wants to engage in a religious observance/practice.

#10: Non-Compete Agreements

Mistake: unreasonable scope. Obviously, an agreement prohibiting an employee from working at any position in the same general industry forever and ever isn't going to hold water.

Mistake: lack of consideration. Legally, contracts are valid only if both sides give something. If the employee gives up their right to compete, the employer must also give something. Too often, the employer gives nothing, making the non-compete agreement invalid in a court of law.

The Reason You Don't Have A Job . ..

Is You!  Yes, you're the reason you don't have a job.

In a survey by OfficeTeam and CareerBuilder, hiring managers say an average of 44% of the resumes they receive come from unqualified individuals.

People are going to give you a lot of advice as to whether or not you should apply for a job for which you are not qualified.  From a recruiter standpoint - please don't waste my time.    If you're not a match 100% for the required qualifications, I don't want your resume.  Period.

Many people simply apply to every open position.   They blanket the town with their resumes. I have had the same individual apply to both an invoicing clerk position and a Tactical Plans Leader position in the same day.  That tells me you're just randomly applying to any job.  You're not reading the qualifications for the position.  And more importantly, that what the company needs really isn't relevant. 

Realistically people.  When I advertise for a position the advertisement is clearly going to reflect the skills and abilities that will allow that candidate to be successful in the role.  If I need an accounting clerk in a fast-paced environment that requires QuickBooks, they need QuickBooks!  As a company we want an employee to hit the ground running.

Let me give you a couple of tips:

• Carefully review the job posting and ask yourself "am I qualified to do the job?"  Carefully evaluate your ability to do the job.   Don't over-inflate your qualifications. 
• When you submit your resume - ensure your resume emphasizes your experience.  Make sure your resume outlines your skills. Proving me with your title and the name of the company gives me no information. If you leave the relevant experience off of your resume - your resume is going into the "no thank you but thanks for applying" stack.

Respectfully, a recruiter.

Facebook Access Demands?

Employers demanding access to employee’s Facebook accounts? Whether or not you have noticed, there is a growing trend where potential employers are demanding that job applicants provide passwords to their private Facebook accounts. The reason? According to employers they want to check for “embarrassing or damaging information.” As an employer, do you really want access to potentially sensitive information? Can it potentially expose the employer who seeks this access to unanticipated legal liability? Doesn’t this practice undermine the privacy expectations and the security of both the user and the user's friends?

Democratic Sens. Charles Schumer (N.Y.) and Richard Blumenthal (Conn.) on Sunday urged federal authorities to investigate whether employers who ask for their workers' Facebook passwords are breaking the law. In a statement, Schumer and Blumenthal called the practice "disturbing" and said it "represents a grave intrusion into personal privacy."

Schumer and Blumenthal asked the Justice Department to investigate whether the practice violates the Stored Communication Act or the Computer Fraud and Abuse Act, which ban unauthorized access to electronic information. "Requiring applicants to provide login credentials to secure social media websites and then using those credentials to access private information stored on those sites may be unduly coercive and therefore constitute unauthorized access under both [laws]," the lawmakers wrote.

And, they didn’t stop there. They also sent a letter to the EEOC asking the agency to review the situation. The concern is that access by the potential employer would give an employer access to "private, protected information that may be impermissible to consider when making hiring decisions." Is there a potential for the private information in a Facebook account to be used to discriminate against otherwise qualified applicants?

Sen. Blumenthal announced last week that he's going to propose legislation to ban employers from requesting access to Facebook accounts as a term of employment. "With few exceptions, employers do not have the need or the right to demand access to applicants’ private, password-protected information,” Blumenthal said. “Employers have no right to ask job applicants for their house keys or to read their diaries — why should they be able to ask them for their Facebook passwords and gain unwarranted access to a trove of private information about what we like, what messages we send to people, or who we are friends with?” Schumer asked.

Facebook condemned the practice in a blog post on Friday. The company's Chief Privacy Officer, Erin Egan, issued the statement: "In recent months, we've seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people's Facebook profiles or private information. The most alarming of these practices is the reported incidences of employers asking prospective or actual employees to reveal their passwords. If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends. We have worked really hard at Facebook to give you the tools to control who sees your information.”

Would any rational person want to turn over his or her passwords? I believe this is a violation of Facebook’s terms of service. If an individual releases their password, it opens up their personal communications to a variety of individuals that are unknown to them.

Currently this activity is legal in most states. Let’s hope we see some change coming.

Candidate Referral Programs

It's a clear indicator that the economy is recovering. Recruiting is up.

When expanding a candidate pool, in addition to traditional recruiting methods companies may use a candidate referral program. While there are associated risks, if properly implemented a referral program can provide a pool of passive candidates that are of higher quality. Let's face it, an employee isn't going to refer a candidate that's a poor fit. Any candidate the employee brings in is a reflection on that employee.

If you are developing a referral program, here's a few basic questions:

1. Are all positions to be eligible for the referral?
2. Are all employees, including managers and supervisors, able to participate in the program?
3. Do you wish for your referral program to include individuals that are non-employees? Non-employees would encompass vendors, consultants, customers and even former employees.
4. What size is the referral bonus? Is it the same for all positions? Should it be a higher amount for a professional position versus hourly position?
5. How long must the new employee be retained prior to the payment of the bonus? Pay 100% up front? 50% up front with balance at conclusion of an identified time frame? 100% at the conclusion of the identified time frame? Personally, hey, it's a REFERRAL bonus. Not a retention bonus. Pay the referral out up front!
6. Should priority be given to the referrals over other candidates?
7. Should the referring employee pre-assess the candidate for the open position? This will allow the organization to ensure that the employee has the skills and abilities for the position prior to interviewing.

As with any referral program, communication is key. Employees must be aware of what positions are being recruited for and what the requirements are of each position. Remember, employee referrals should add to the quality of the candidate pool.

EEOC: No Diploma Necessary (New Guidance)

The informal discussion letter that the EEOC issued in November 2011 raised a lot of questions and concerns. The EEOC (finally) released some additional guidance on when an employer may POTENTIALLY violate the ADA by requiring employee candidates to have a high school diploma.

According to the EEOC, "[t]here have been significant commentary and conjecture about the meaning and scope of the letter." To clarify the legality of requiring a high school diploma under the ADA, the EEOC has posted a series of questions and answers on its website. The EEOC explains that employers may continue to have the high school diploma requirements. However, the employer may have to allow candidates claiming to have a learning disability to "demonstrate qualification for the job in some other way." The EEOC further states that the employer is still permitted to hire the most qualified person for the job and does not have to give preference to an individual with the disability over someone who can perform the job better.

EEOC Update: No Diploma Necessary

On December 2, 2011 the EEOC posted a letter on their website stating that under the ADA, an employer’s requirement that an applicant have a high school diploma must be job related and consistent with business necessity.

What?

The letter states: “ . . . . if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process. If the individual can perform the job’s essential functions, with or without a reasonable accommodation, despite the inability to meet the standard, the employer may not use the high school diploma requirement to exclude the applicant. However, the employer is not required to prefer the applicant with a learning disability over other applicants who are better qualified.

We hope this information is helpful. This letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC.”

The concept here is that the students inability to graduate from high school may be a symptom of a learning disability. Let’s be realistic. Isn’t this an insult to individuals with true learning disabilities? Are we sending a message that you don’t have to stay in school to get a job? That a high school dropout has an entitlement to my job, or your job?

As an employer, do you feel that than increase in EEOC claims against employers will occur? Will there be unfortunate repercussions? Even though the letter does not constitute an official opinion, it raises some concerns for me. A long standard criteria for screening many employees is the high school diploma. Can I say “high school diploma preferred?” Please?

For students, where is the incentive to go to school? To get a higher education? Will this create an educational backlash by creating a diminished incentive for some high school students to finish school?

A comment I read “So if we carry this to its logical conclusion, hospitals will have no right to require doctors to be board-certified or have graduated from an accredited med school.” Hey, I didn’t have the grades to make it to medical school. I didn’t have the mental “capability.” I always wanted to play doctor!

To read the full letter, here’s the link:
http://www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_standards.html

Conducting Phone Interviews

You finished reviewing each and every one of the countless resumes you received. Now that you have developed a short list of candidates for the position what is your next step? Well, let's talk about the phone interview.

Oftentimes employers will conduct phone interviews in advance of on-site interviews. This allows the employer to assess candidates and their skills in an effort to identify those candidates an employer wishes to pursue further. *A word of advice – don’t call everyone. Phone interview only those individuals you feel are your best prospects.* Remember, a phone interview is all about gathering information on the candidate. The phone interview should be short. No more than 20 minutes. Yup, that’s it.

As an employer, I always recommend that the phone interview be pre-scheduled. Calling a candidate at the spur of the moment may catch the candidate at a bad time. Pre-scheduling will allow the candidate to ensure that s/he is in an environment in which they can give you their full and undivided attention. Allow the candidate to be prepared and in an environment that is distraction free. No barking dogs, no crying babies, no loud television. Just you, the candidate and the telephone.

When conducting phone interviews you should always have a “script” or a set of questions to use. *Review your questions frequently and ensure that they exclude any questions that are forbidden by the EEOC and that could potentially lead to job discrimination lawsuits.* Always make sure you have the candidates resume right in front of you as well as the job description (or posting).

During your phone interview, review the candidate’s background. Look at the employment history. Are there any gaps in employment? Discuss his/her role with their current employer. Why is s/he considering leaving? What dissatisfied him/her? Does the candidate’s background and experience truly match the qualifications in your job description? What is the candidate looking for in a new position?

During the interview, always take time to discuss YOUR organization and the value the position (and the right candidate) will bring into the organization.

Always clearly explain your hiring process. Briefly explain the next steps of the application process. Communicate the time frame on when the candidate will be contacted regarding his/her application status.

Conclude the phone interview by thanking the candidate for his/her time and interest.

*Remember, always document your phone interview and provide a summary of responses from the applicant.*

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!

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!

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)