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An old Gary Larsen cartoon once showed a kindly old lady hand-feeding birds in her back yard. Off to the side was a sack labeled with words that read something like: “Fake birdseed. Great fun! Birds just can’t figure it out!”

Fake bird seed represents many vendors’ test claims … and, what users don’t know about birdseed and test validity can cost them a fortune. Test validity does not mean people like the test; or, the test has zero adverse impact; or, the EEOC approves; or, the test looks sexy. Validity means test scores consistently predict some specific aspect of job performance. For example, if high scores predict more mistakes, then low scores should predict fewer. Validity predicts on-the-job performance … both ways.

Reputable test vendors (i.e., those who follow professional test development standards) eagerly show controlled studies of test results … and, welcome questions about them. Bird seed vendors enthusiastically produce client testimonials … andget defensive when questioned. How can testimonials be unacceptable? For the same reason you cannot trust political ads. They have an agenda and are seldom supported by facts. Here is an example using a sales job: keep reading…

Complaints of retaliation by employers trumped race for the second consecutive year, according to the U.S. Equal Employment Opportunity Commission.

The EEOC said total new complaints during fiscal 2011 were just slightly ahead of 2010. Last year it received 99,947 claims compared to 99,922 the year before. It also reported taking in $455.6 million through its administrative program and litigation.

Released last week, the stats show charges of retaliation by employers against workers who raised discrimination issues accounted for 37.4 percent of the commission’s workload. Complaints alleging just violations of Title VII (discrimination on the basis of sex, race, color, religion, and national origin) accounted for 31.4 percent of the complaints.

Retaliation claims are rising faster than any other category of complaint, up 10 points in the last decade. Race discrimination claims, historically the most frequent, were the second-most commonly received complaint by the EEOC. They’ve hovered around 36 percent for years and last year represented 35.4 percent of the total charges. keep reading…

Does the name Thom Beers ring any bells? Try Ice Road Truckers or Deadliest Catch or Storage Wars. Beers is the man behind these shows, two of them Emmy winners, and a slew of others that have redefined reality TV.

His list of credits is a veritable compendium of the shows that turned the Discovery Channel from a repository of old-school science and nature documentaries and recycled European programming to the most widely distributed cable network in the U.S.

By any definition of the word, Beers is a success.

But it’s because of the time he was out of work with a family to support, yet took the risk to start his own production company, that Thom Beers’ is one of the first stories American Dream told on Armed Forces Radio Network. When the show begins its second season later this month, eQuest will be the sponsor. keep reading…

Welcome all you friggatriskaidekaphobians. We feel your pain, even if we don’t share your fear of Friday the 13th.

Most of us, of course, note it just as we might Groundhog Day, except that Friday the 13th, always falling on a Friday (duh!) means the weekend is just hours away. So that makes it a good thing.

Alas, for HR professionals and supervisors with superstitious staffers, when the 13th falls on a Friday, it can mean more absenteeism and less productivity. An estimate in 2004 put the business loss at $800-$900 million. If that estimate still holds up, then the superstition will cost U.S. business almost $3 billion this year, since there are three months when the 13th falls on a Friday: today, then in April and July.

As silly as it may for some, for perhaps as many as 21 million Americans, the day holds special fears. This could mean anything from exercising more care than usual, to a compulsive, even pathological inability to function.

Many date the fear back to antiquity, never mind that the researchers who have looked into friggatriskaidekaphobia find no reference to it before the 1800s. On the other hand, triskaidekaphobia — fear of things 13 — has historical antecedents going back centuries. Today it holds sway today in such subtle ways as omitting the 13th floor of buildings and hospital and hotel rooms, and airline flight numbers.

In Thirteen: the story of the world’s most popular superstition, author Nathaniel Lachenmeyer cites a Texas Instruments decision to offer an early retirement plan with a Monday retirement date, rather than the more traditional Friday. Why? Because the Friday would have been the 13th explained the HR department.

There’s not much written about the HR implications of workers with superstitious beliefs about Friday the 13th specifically. An article about the issue in the United Kingdom on HR Review suggests advising fearful workers to obtain treatment. There’s also a four step self-help list in the article.

In the States, it’s a little dicier a situation. keep reading…

For those suffering from insomnia now around 2 a.m. Eastern, we’ve dug through a U.S. government website to find a 172-page document that may help you sleep — or, if you’re a federal contractor, could possibly keep you up at night.

The draft of the proposed rules, to be printed later today (Friday the 9th), would create a big new set of rules related to hiring people with disabilities. keep reading…

Requiring a high school diploma as a condition of employment for some jobs could land you in trouble with the U.S. Equal Employment Opportunity Commission.

An “informal discussion letter” just posted to the EEOC’s website says that under certain circumstances, requiring a diploma may run afoul of the Americans with Disabilities Act. If the requirement screens out persons unable to earn a diploma because of a bonafide disability, the employer has to justify the requirement as job-related and consistent with business necessity.

Doing that for some jobs isn’t going to be easy. Employers almost as a matter of routine include at least a high school degree requirement in every job posting, including for janitors and cleaners. The U.S. Labor Department, however, says, “Most building cleaning workers, except supervisors, do not need any formal education and mainly learn their skills on the job or in informal training sessions sponsored by their employers.” keep reading…

As Occupy Wall Street protesters criticize high unemployment and economic inequality, a little-known diversity mandate embedded in the Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 4173 / Public Law 111-203) is forcing a different kind of occupation within those very financial institutions. In 2012, Wall Street firms must be prepared to prove they’ve made a good faith effort to employ women and minorities or else they stand to lose billions of dollars worth of contracts with the federal government.

In other words, Dodd-Frank is mandating that more women and minorities must occupy lucrative Wall Street jobs that heretofore have been dominated by white men who, in gender and ethnicity, resemble Gordon Gekko, the anti-hero of the movie Wall Street and of its sequel. keep reading…

Summertime,

And the livin’ is easy

Reqs are slowin’

No hirin’s nigh.

In the spirit of these August dog days, here’s a little collection of HR snacklets to entertain you and, maybe, even inform you. I swear, though, that it is the former, not the latter, that I intend.

An HR case from Oz.

A government worker was dispatched on a business trip to rural New South Wales, where she was instructed to spend the night. To while away the time, the 40-year-old woman took up with a male acquaintance. During what must have been a particularly frisky rollick, a wall lamp over the bed fell, injuring the woman. She filed for worker’s comp.

When it was denied, she sued, her attorney arguing in court last month that having sex is “normal behavior.” “Having sex,” he said, ” is just one of those things. It’s not the 1920s, after all.”

The court is currently considering a decision. Want more? Go here. There’s even a video. (I know what you’re thinking and it is NOT of that.)

Now let’s turn to vacations. keep reading…

When Dawnmarie Souza called her boss a “scumbag” on Facebook she was fired.

It wasn’t just the offensive comment (one of several) that got her in trouble, said her employer, American Medical Response, but “multiple, serious issues.” Among them was Souza’s violation of the company’s blogging and Internet policy, which prohibited “making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.”

She complained to the National Labor Relations Board.

What happened?

The NLRB sued, claiming that Souza’s Facebook posting was protected activity and that AMR’s Internet policy was an overbroad infringement on worker’s rights. The case was settled a few months ago with AMR rewriting its policy on blogging and social media usage. A separate, confidential settlement was reached with Souza.

This is but one of over a 100 cases involving social media that have reached the NLRB in just the last few years. More are on the way.

As of now, there are no clear cut rules regarding what is protected speech under the National Labor Relations Act, but a study of the cases by the U.S. Chamber of Commerce has identified some emerging themes. keep reading…

Is your company among those who reject the unemployed because they are unemployed?

If you are — and a report from the National Employment Law Project suggests the list is longer than you might think — be careful. You’re walking a thin line between legal discrimination, and the kind that just might result in a disparate impact complaint from the EEOC.

At the behest of some 50 members of Congress, the U.S. Equal Employment Opportunity Commission held a day-long hearing on the matter several months ago. No formal statement has come out of the hearing, but the attention focused on the issue by the EEOC and Congress is raising concern among the employment bar. Labor lawyers are counseling employers to act carefully, avoiding blanket policies against hiring the unemployed.

Unless you are hiring in New Jersey, it is legal to include language in a job posting discouraging the unemployed from applying. In the Garden State, however, it became illegal on June 1 to discriminate against the unemployed in print or online ads. But everywhere, it’s bad PR to include the kind of wording that turned up in the now-infamous Sony Ericsson job posting.

Legal or not, employment lawyers at Foley & Lardner warned a few months ago that “employers can expect their hiring practices concerning the unemployed to be scrutinized.”

With an unemployment rate (in June) of 16.2 percent, twice that of whites, blacks could well be disproportionately impacted by a blanket “no unemployed” policy. Thus, said the Foley & Lardner lawyers, “The issue also seems ripe for a disparate impact test case, perhaps even one brought by the EEOC itself against an employer.” keep reading…

A job candidate who you’d like to have on staff would arrive at your company with a little extra bonus for you, beyond just her expertise: thousands of Twitter followers, LinkedIn connections, and Facebook friends. But what are the legal implications of hiring someone — even a bunch of people, perhaps all from one company — partly for their social media connections?

Renee Jackson, a Boston attorney with the law firm Nixon Peabody, mulls over these issues in the podcast below, about 11 1/2 minutes. She talks about the role non-solicitation agreements play in all this, and the push and pull between being extra careful to avoid legal trouble and trying to stay consistent with the open-honest-transparent spirit of social media recruiting. keep reading…

If you recruit in Italy, don’t check the social networks when you background a candidate. In Spain, you can monitor the time your workers spend on social networks, if you warn them in advance you’re going to. But without their permission you can’t monitor the content.

And do you have a company policy regarding social networking? Only 55 percent of the companies do, according to a survey by the International Labor & Employment Group at Proskauer Rose.

The high-powered law firm conducted what it describes as an “informal survey on emerging trends and practices on the use of social media in the workplace,” finding that 76 percent of the 120 responding companies use social media for business purposes.

The results of the 10-question survey are supplemented by brief summaries of rules and regulations around the world, which, as in the U.S., can be fairly loose, or, as in Italy, so restrictive that employers can’t even monitor what their workers are doing on company time using company equipment. (Employers there can, however, prohibit the use of social networking sites during work hours.)

Rather than rely on existing company policies, Proskauer Rose says, “businesses need to have distinct and specific social media policies and practices in order to harness the benefits and minimize the risks these new media present.”

It’s telling that although 55 percent found value in the business use of social media during work hours, but not in its personal use, a significant 31 percent found an advantage in allowing both business and personal use.

The survey also found 31 percent of the companies took disciplinary action against an employee in connection with their use of social networks, while 43 percent have faced an issue with misuse of social networks.

Proskauer suggests companies consider three factors whether they use social networks for recruitment and selection or in disciplinary action: keep reading…

Halogen and SuccessFactors have settled their lawsuit, with Halogen paying its competitor in the HR software business an undisclosed sum and admitting it created a bogus company to scam information.

It probably was inevitable that the Ottawa, Canada, company would want to settle the case. From the evidence SuccessFactors allegedly had, Halogen, if not caught red-handed, certainly had a lot of ‘splainin to do. Plus, the whole episode was embarrassing, made for very bad PR, and, as I said when the news first broke, it made a mockery of Halogen’s social responsibility statement. keep reading…

Several years ago, as I was preparing to head off for a long weekend hiking in the Yosemite backcountry, I got a call from the CEO.

“Why won’t you be reachable?” he wanted to know.  He just read the email about my being out of touch with the office.

Because, I started to explain, there are no cell towers or service in the middle of the wilderness. He cut me off with a curt, “Maybe you should vacation somewhere else.”

An isolated incident? Not anymore. Today, says a Manpower survey, nearly two-thirds of the responding workers at least sometimes get emails in their off-hours from bosses who expect a reply.

“It’s now taken for granted that everyone has to check their work email during the weekend,” says Monika Morrow, SVP for Manpower’s Right Management unit.

That’s most true for exempt workers, who likely made up the bulk of the 569 survey respondents. Non-exempt workers, however, have to be paid. Maybe not for every contact, but, as we’ll see in a moment, more often than not. keep reading…

Employers with mandatory arbitration policies should give them a second look in the wake of an NLRB judge’s ruling against a global supplier of manufacturing parts.

Administrative Law Judge George Aleman invalidated an arbitration policy adopted by Supply Technologies, which imposed a three-step process for grievance resolution that the judge ruled interfered with their rights under the National Labor Relations Act.

In addition, the judge ordered backpay and reinstatement for the 20 employees who were fired when they refused to sign the paperwork agreeing to the new policy.

That might be a problem more for HR generalists and compliance staff were it not for the fact that recruiters are faced with sorting through a legal fog regarding pre-dispute arbitration agreements. Typically these agreements are part of the raft of documents new employees first see during onboarding. But these days, the savviest of candidates are insisting on inspecting corporate policies as closely as they are the comp package when an offer is made.

While the Supply Technologies case turned on a unique combination of factors, including some confusing language regarding complaints to government agencies, the decision does little to add clarity to the state of the law regarding compulsory employee agreements. keep reading…

Two proposals from the Federal Office of Contract Compliance Programs, now open for public comment, seek to require federal contractors and their subs to do more to hire veterans and to provide more information and data in the event of a compliance audit.

So far, neither of the proposals seems to have caused much of a stir, despite nearly unanimous mentions in the various analyses of the additional paperwork and increased obligations on federal contractors.

Littler Mendelson, one of the largest employment law firms in the country, says the OFFCCP focus on veterans “significantly expands the obligations of federal contractors and subcontractors.”

Another firm, McGuireWoods, referred to the proposal for additional data as both “burdensome” and “stealthy.” The firm notes in its analysis, “The agency (OFCCP) does not understand the private sector or have any apparent concern about the burdens and confidentiality issues these proposals place on contractors.”

The OFCCP itself estimated it would take 103.2 hours and cost $135,000 to collect and provide all the data that could be requested in the so-called “Scheduling Letter” — the notice of compliance audit — should the changes it wants be adopted. (The OFCCP has to get permission from the Office of Management and Budget for changes to the document and data provisions.)

Complying with the veterans rules is estimated to cost each contractor $396 a year and take 10.7 hours a year. keep reading…

The early bird catches the worm. Mom and Grammy knew that, as did the English four centuries ago. Hardly a surprise, then, that a study of 6,600 hires finds that the sooner a candidate responds to a job posting, the better their chance of getting hired.

This confirmation of what most of us intuitively suspected comes from StartWire, a job search networking collaboration service launched six months ago by Chris Forman, formerly of AIRS, and his partner Tim McKegney, also an AIRS alum.

As part of the research and testing for StartWire, Forman collected hiring information from employers across 10 industries. Cumulatively, the companies shared data on 6,600 hires. From that emerged the correlation between speed of response and hiring.

What Forman and StartWire found was that almost 50 percent of the hires the companies made had applied within the first week a job was posted; 27 percent of the hires applied within two days. And three-quarters of those hired had applied within the first three weeks.

Forman says it sort of a “duh” revelation, but since he’s never seen a study that examined the matter, he decided it might be interesting. In the aggregate, the conventional wisdom about applying early improving a candidate’s chances is correct, he notes. On a job-by-job basis though, it might not be so. keep reading…

A coalition of labor unions and immigrant workers organizations is pushing a bill in Massachusetts to overhaul the state’s staffing industry.

If it’s adopted — almost half the state Legislature is listed as sponsors — the bill would impose a number of administrative obligations on staffing firms, and potentially limit some fees while raising costs. It exempts most professional workers, but it would apply to a broad range of workers, including nurses, clerical, blue collar, and similar. Violators could be fined.

Proponents, who were contacted but didn’t respond  are positioning the legislation as a “temp workers right to know bill,” highlighting provisions requiring staffing firms to inform employees for whom they’ll be working, how much they’ll be paid, where they’ll work, and what they’ll be doing.

While on its face benign, other provisions of the bill limit some fees and essentially end temp-to-hire conversion fees. It puts a damper on the practice of shopping good candidates, by prohibiting candidate referrals without job reqs. Out-of-state staffing firms could be closed out of placing workers in Massachusetts unless they had an in-state office.

“There is no such law currently existing in other states,” says Stephen Dwyer, general counsel for the American Staffing Association. “It is more sweeping and more harmful than any, bar none.” keep reading…

Even as states and the U.S. EEOC are getting tougher — and talking tougher — on the use of credit checks, more employers are using them, says a just-released survey of trends in background screening.

Of the 783 responses to the survey conducted in March by EmployeeScreenIQ, 21 percent of the respondents reported they credit check all their employees. Last year EmployeeScreenIQ found only 15 percent reported doing that.

Whether they check all or just some employees, more companies are checking. The survey found two-thirds of perform credit checks; that’s up from 61 percent last year.

SHRM got similar numbers when it surveyed members in winter 2009. Forty percent said they credit-checked no one; 13 percent reported credit checking everyone.

It seems surprising that the number of companies performing universal credit checks is going up, even as the debate over whether they should even be allowed is intensifying. keep reading…

The other shoe is dropping in last year’s anti-poaching case the U.S. Department of Justice brought against six big-name tech firms, and it is falling most heavily on Apple.

The six firms — and a seventh,  Lucasfilm — are facing a class action suit claiming their agreement not to pursue each other’s employees depressed wages and was a violation of California antitrust law.

According to the suit filed Wednesday, Google, Adobe, Intel, Apple, Pixar, and Intuit (the six firms, which were sued and settled with the DoJ), and Lucasfilm agreed not to cold-call each other’s skilled workers. Doing so, the lawsuit alleges, denied workers information about job opportunities, pay scales, and reduced their ability to negotiate.

That much the Justice Department claimed when it settled with the six companies it sued. But it alleged then that the conspiracy was a series of interconnected agreements negotiated between companies. Now, the suit suggests Apple and its CEO Steve Jobs was behind the scheme. Claims the suit:

Defendants’ conspiracy consisted of an interconnected web of express agreements, each with the active involvement and participation of a company under the control of Steve Jobs (currently CEO of Apple) and/or a company that shared at least one member of Apple’s board of directors.

keep reading…