ERE.net

This week:

• Non-compete clauses
• “Color tests”
• Internal recruiting
• Resume search/software tool
• Working from home
• Job board debate

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The hiring practices of one of the most famous entertainment venues in the world have been called discriminatory as the result of a background criminal check that turned up a job candidate’s assault conviction.

A New York City law firm filed a complaint with the Equal Employment Opportunity Commission claiming Madison Square Garden discriminates against African-American job applicants by illegally using criminal history reports in making hiring decisions.

The EEOC complaint alleges that Carlene Clarke, 27, received an employment offer letter from New York’s Madison Square Garden in September 2007 which was rescinded a month later after a background check discovered she had pleaded guilty to misdemeanor assault more than five years earlier.

According to the press release issued by Outten & Golden LLP, which represents Clarke, the rationale for the complaint is that “use of criminal histories in making hiring and other employment decisions has a disparate impact on African-Americans.”

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Mickey Silberman, the ubiquitous Jackson Lewis attorney with a gift for gab and an encyclopedic knowledge of the U.S. government’s online recruiting rules, offers employers who must comply with such rules three questions to ask themselves.

By asking themselves these questions, he says, you can reduce the number of people considered “applicants.” This can help employers better comply with the rules. (If you can show that you hired 20 women out of 25 applicants, that’s generally better than saying you hired 20 women out of 25,000 applicants.)

Anyhow, the three questions:

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The U.S. EEOC will be “looking very, very closely at disparate impact issues,” the agency’s chair Naomi Earp said a few minutes ago here at the big ILG conference in Anaheim.

President Bush appointed Earp, a single mother of a teenage son, to her current term in 2005.

She says the “agency has no illusion” that it can tackle all of its huge workload. Instead, it hopes to bring about workplace change through disparate impact cases. Expect the EEOC to focus specifically on technology and tests used by employers in the hiring process.

Also, Earp:

–Says that people with some Asian and African accents are sometimes “viewed as put-offs.” People dwell on the fact that they’re Japanese-Americans or another nationality and ignore the content of their words.

–Says Hispanics see this as “our time” and expect to be taken very seriously.

–Gets a kick out of a new Bloomberg flex-scheduling policy that coincides with a lawsuit against the company.

–Lashed out at those who believe “corporations are inherently evil.”

–Says, not-so-jokingly, of the EEOC: “The one thing we do really well is prosecute employers.”

• Zacky has settled with the OFCCP. Because of hiring practices the Labor Department believes disproportionately rejected female applicants for some jobs, the company will pay about $347 to women turned down for jobs; hire some who weren’t hired; and monitor its hiring process to make sure it’s not discriminatory.

• A new report on healthcare and manufacturing in Ohio finds that, regarding healthcare, “In a worrisome trend, some of the healthcare occupations that experienced the strongest growth also had declining real median wages. These jobs tended to be healthcare support positions that required little or no classroom training. This trend was exemplified by the home health occupation, which grew by 56 percent in just three years by adding 17,100 jobs. The real median wage in this occupation fell by 5.6 percent.” And regarding manufacturing, “Guidance counselors do not understand the opportunities available for manufacturing careers or choose to direct students to other fields.”

• One group says it has “something exciting” to announce, which it says will be the “next best thing in Web 2.0 recruiting.” Meanwhile, InovaHire says its “design and functionality will be Web 3.0.” What’s on the Inova site isn’t much now, but we’ll keep in touch with the company and fill you in.

• CareerBuilder has launched a new job board, for retail.
  

• Speaking of CareerBuilder, which recently launched a new iPhone app … Nate Swanson, who analyzes HR/recruiting-related stocks for ThinkPanmure, says the recruiting/HR field will move quickly into mobile-device adoption. He writes: “With early movers such as salesforce.com, Oracle, and CareerBuilder already live with mobile applications on the App Store, we believe that it is only a matter of time before the human capital management space begins to push into the mobile frontier … we actually project an inflection point in growth 12-18 months from now as HCM applications converge with social networking and Web 2.0 technologies … We believe that the iPhone is pushing these boundaries fast, really fast, and other mobile device manufacturers are now scrambling to catchup.”

• A lousy candidate experience? According to Dubai-based Hiring Solutions, its client Alshaya, also in Dubai, is one exception. Hiring Solutions says in an email: “Every job seeker at Alshaya will henceforth receive SMS updates on their job application, regardless of which part of the world they live in. The SMS will inform candidates whether they are short-listed or called for an interview and ask them to check their email for complete details. This spares jobseekers the agony of second-guessing their application status and helps Alshaya to reduce its average time-to-hire.”

Each week, ERE discussion group members share ideas, voice concerns, and work together on similar recruiting challenges. After a year or so of feeling a little reluctant to participate, I recently started to post comments and messages in some of these groups. I think part of what made me hesitant to contribute was the fact that there is so much information. It was hard to spend the time picking out the most relevant discussions. I thought I would make it a little easier by giving everyone a weekly update — a summary of the top seven most interesting discussions of the previous week.

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There is a major shortage of talent. Critically needed foreign workers cannot make their way here because temporary work visas are snapped up on the first day they become available. If you were thinking this is about high-tech workers, you would be wrong. This is about fashion models.

What few people know (and maybe even fewer care to) is that currently a fashion model coming to America has to compete for the same H1-B visas that every immigrant software engineer and developer does. This is a crisis. Summer is upon us and what are the editors of swimsuit editions supposed to do when visas run out on the first day they are available — take pictures in France and Photoshop in a background from California? Fast action is needed. Disaster looms. The fantasy lives of millions of teenage boys and voyeurs are in jeopardy.

Enter Anthony Weiner. The congressman from New York is riding (or taking the subway) to the rescue. Representative Weiner has sponsored a bill in Congress that would create a separate category of visas for fashion models, the P-4. If passed, the beauties would not be competing with the geeks and we can all breathe a collective sigh of relief. Weiner for President.

Jokes apart, the Weiner bill — HR 4080, does highlight a fundamental problem with U.S. immigration policy. With regards to talent we have no policy. What we do have are immigration laws dating to the 1940s that have been sporadically modified without much of a plan or any broader understanding of the strategic implications. That made little difference in the past with the U.S. being the best and, to some extent the only, destination for skilled talent.

While the U.S. is still a very attractive place, alternatives are emerging. I wrote about this in a recent article on increasing competition for talent from the European Union and other countries. The Blue Card program created by the EU is explicitly targeted at skilled workers, unlike the Green Card, which is predominantly a vehicle for reuniting families. Our immigration policy does little to attract high-caliber talent in fields like technology and sciences and does not differentiate much between categories of talent. There are no strategic underpinnings to support employers in the war for talent.

Take the H-1B program as an example.

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Some news from various sources on employment eligibility, background checks, screening, and more:

New I-9 Form Released…

U.S. Citizen and Immigration Services just released its new version of the I-9 employment verification form, so make sure to update your records. (You can download it here; note that the new expiration date in the right-hand corner reflects 6/30/09.) You can move to an e-file for these forms, and perhaps you should: employeescreenIQ says its data shows that more than 85% of paper I-9 forms are filled out incorrectly. And electronically verifying this step is certainly a “greener” thing to do, and companies like Verified Person, Inc. agree. Its CEO, Jim Davis, says his Verified Person I-9 solution “affirms Verified Person’s belief in promoting an HR process that benefits the environment.”

From Resume Fluffing to Conviction Bluffing…

The folks at employeescreenIQ also say one of the hottest background-screening trends centers around the importance of thorough background checks in a shrinking job market. In fact, considering the state of the economy, “the job market is destined to become even more competitive, which in turn could lead some individuals to stretch the truth in order to secure employment,” according to the company’s new list of 10 background screening trends. Also, employeescreenIQ says conviction rates among job applicants are on the rise, and points to a 56% discrepancy rate between what is reported on a resume and what is found when conducting employment and education verifications.

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–In Illinois, a home healthcare company settles a case regarding an employee allegedly not hired for being black.

–Meanwhile, Disney is sued for allegedly not hiring someone who didn’t have the “Disney look.”

–Who says the newspaper is dead? Well, I do, often. But Brian Hauswirth of the Missouri Department of Corrections tells me the paper’s the main reason why his career fair just surpassed all expectations. “When we ask people, ‘where did you hear about the career fair?’ the no. 1 reason is the newspaper,” he says. About 165 people attended the fair, he says, and about 103 applied for Corrections Officer 1 positions at a new prison. They still need to pass background checks, but Hauswirth says the results are “very promising.” Those with military experience make up about a quarter of corrections officers.

–Cellular South has completed a redesign of its careers site. It’s no EY site, but the company does use video to try to get applicants who fit its culture: fast-paced, challenging, competitive. It had Bernard Hodes (profile; site) help out (after realizing that consumer marketing and employment branding are cousins, not siblings, so Cell South can’t just use its in-house marketing folks), but still uses Sonic (profile; site) to track applicants.

Barb Miller, VP of human resources for the 1,000-employee company, one of the largest privately held wireless companies in the U.S., says the employees you see on the site are indeed employees, not actors, though Hodes and Miller’s team did discuss the idea of using actors (some Cellular South employees underperformed on camera, resulting in an SVP filling in at the end). Cellular South will measure results of the site through the “capture rate” (who leaves the site?); quality of hire (performance reviews, retention); traffic; and productivity (how many customers they can get with a certain number of employees). I asked Miller about the company’s snooze-inducing job descriptions. “You hit on something good,” she says. “That will be the next phase of what we do.”

We may be in the midst of a recession with increasing unemployment and fewer jobs, but that’s not likely to have much long-term effect on shortages of talent.

We’ve all read about the aging of the population and other demographic factors. The likely effect of these on availability of talent has been extensively written about. But the problems are likely to be worse than we realize because of three factors: liberalization of immigration policies in other countries; more restrictive immigration policies in the U.S.; and supply of talent.

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The election this year is considered a watershed event in American politics. We have, at this time, three individuals who have a good shot at becoming president. While there are plenty of reports on who will best serve what groups’ needs, it would be instructive to look at who would be of most benefit to the recruiting profession.

To make this assessment as objective as possible, three criteria that affect recruiting will be used to compare the candidates: immigration, since it impacts the availability of labor; supporting a climate conducive to business, since business is the primary source of employment; and legislation that impacts employment, either making it easier or more difficult to hire an employee. Everything written here is taken from the candidate’s publicly stated position, his or her voting records, or information in the public domain.

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Talent acquisition leaders gained additional time to prepare for the impact from pending immigration reform in 2007, but as 2008 approaches, the clock is still ticking toward an inevitable passage of legislation in some form, so recruiters must be vigilant and prepared.

This past summer, Congress failed to agree on specifics that would produce Comprehensive Immigration Reform legislation, and the Department of Homeland Security’s “No Match” program was placed on hold via a temporary injunction in October.

While all the specifics have yet to be worked out, the first drafts and early discussions around immigration reform legislation clearly point toward increased responsibility on the part of employers for validating the legal status of their workers. When passed in any form, immigration legislation causing increased employer accountability for worker documentation will undoubtedly tighten an already competitive labor market.

Some industries such as construction, hospitality, agriculture, manufacturing, and food service stand to be directly impacted by CIR and the “No Match” program, which requires employers to respond to letters from the Social Security Administration citing disparities between an employee’s personal identification records and the records maintained by the SSA.

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When a Tulsa staffing firm sued its largest client and a competitor, it was a shot that surprised the staffing industry.

“This is the first case we’ve seen in quite a while,” says Edward Lenz, senior vice president, public affairs, and general counsel for the American Staffing Association. While finding and retaining good workers is getting tougher than ever for staffing companies, Lenz observes that suing a competitor for recruiting your workers is “somewhat of an anomaly.”

“Lawsuits in the area,” he adds, “have not been notably successful.”

In Tulsa, AcctKnowledge filed suit against IBM and Manpower within days of being told the computer giant was consolidating its financial staffing services through Manpower. The suit filed in federal court in Oklahoma alleges a number of contractual violations and claims Manpower attempted to poach AcctKnowledge’s workers when it sent recruiters to stand outside IBM’s Tulsa offices with invitations to informational sessions.

Tammy Been, general manager of AcctKnowledge, told us she is indignant over the way the termination was handled, but her biggest issue is with the 89 workers - half her workforce - that were placed with IBM. “What I’m most concerned about is that they have to go with Manpower,” Been says. “Don’t take my people.”

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I really don’t like being a resident doomsayer, but organizational hiring and promotional practices are generally so abysmal that I am compelled to make it a big issue. Take EEOC tracking, for example. Most people think all they have to do is send in routine normal reports. Not so. They should be monitoring adverse impact throughout their entire hiring process.

According to the EEOC, and best practices in general, each employer should be monitoring adverse impact by using the following rule of thumb:

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The Department of Labor introduced significant changes on July 16 that will directly impact employers that process labor certifications for their employees. Labor certifications, more commonly referred to as the employment arm of the “green card” process, play a crucial role in helping organizations recruit and maintain the global talent they need in order to remain competitive.

The recent changes will not only impact an employer’s internal process for processing green card applications, but also will likely lead to revisions to their recruitment strategy and budgetary forecasting moving forward.

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You’re a hiring manager or a third-party search firm and pride yourself on being ethical and certainly on following the law. But what about the more subtle ways you may be engaging in, or forced to respond to, discriminatory hiring practices? It’s more common than you imagine.

In the last year, how many times has someone handed you a directive that identifies a group of ideal candidates based in part on age, sex, race, or national origin? How many times has your client responded to a candidate’s interview with comments on these categories? Before you answer none, think about all the guises in which discrimination can appear.

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When it comes to talent, you and your company have your own ideas about identifying the most valuable employees. That’s the way it should be, since your company’s need for talent depends on its strategy and circumstances. So it stands to reason that your company is in the best position to decide what talent is needed and when.

Now along comes the proposed immigration bill that, if it becomes law, will make that determination for many employers. This bill should be of concern to all those in the recruiting profession, especially those of you recruiting for advanced skills. Here’s why.

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Besides a donut and coffee, Boston-area customers of Dunkin Donuts are getting a reminder that the simmering nationwide debate over illegal immigration is starting to become every employer?s business. Some customers are now being greeted by signs that read: ?We follow the law! This company hires lawful workers only.?

Dunkin? Brands, the parent company of Dunkin Donuts, has announced that it now requires all 5,000 of its U.S. franchisees to participate in the government?s Basic Pilot program, a voluntary federal program that enables employers to tap online databases from the Department of Homeland Security and Social Security Administration to quickly verify whether new recruits can work legally in this country.

While only 6,200 of the nation?s 8 million employers have signed up for the program so far, rising interest in the program suggests that more employers want to avoid hiring illegal workers and the hefty fines that could result from doing so. Some simply want to address consumer assumptions that workers who speak English as a second language are illegal workers.

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The United States Senate has moved us one giant step closer to fixing our immigration system. After weeks of debate, dozens of proposed amendments, and scores of votes, the Senate last Thursday passed the first comprehensive immigration bill in nearly a quarter century. The changes to immigration law that will follow have major implications for the entire nation. While the House and Senate still must come together to work out the final details of a bill for the President to sign, the Senate’s vote brings the most important elements of a new immigration system into focus. America’s revised immigration system will do far more to secure our borders, meet our economy’s labor needs, support a common culture, and uphold our standards of compassion.

Most importantly, the new immigration bill begins the process of constructing a combination of actual and virtual fences across every inch of our 1,951-mile-long border with Mexico. In places that need them, the Senate bill will build 370 miles of new physical barriers. In other locations, the bill will fund a variety of sensors and electronic means to detect intrusion. The bill also supports new efforts to provide Customs and Border Protection with additional personnel, facilities, and aircraft. While border security ranks first among our concerns, sensible immigration cannot stop there. Many men and women who once violated immigration laws have spent years living in the United States, working, paying taxes, and raising families.

The Pew Hispanic Center estimates that over 11 million illegal immigrants live in the United States. California has the most at 2.5 million. Many illegal immigrants now have children who have entirely immersed themselves in American culture. Forcing long-term illegal residents to quit jobs, abandon families, and leave the country just isn’t feasible. Since they’ve violated our laws, however, long-term illegal residents should have to pay fines, learn to speak English fluently, master the basics of American government, show that they lack serious criminal records, and get in line behind those who have followed the rules. Only then should we even entertain their applications for citizenship. Finally, some people - those who came here illegally in the last two years - will simply have to return home and apply through the regular, legal channels if they ever hope to work in America. There will be no way they can find work otherwise. Those who come to the U.S. in the future will have to take advantage of existing visa categories or new guest-worker programs. Our revised immigration system will also take steps to uphold America’s common culture.

For the first time in history, the Senate bill establishes English as our national language. To further underline the importance of our common culture, the bill would also tighten the standards for the tests on American history and civics that everyone seeking citizenship will have to pass. Finally, the new immigration proposals show compassion for those who come to our borders. The overwhelming majority of people who violate our immigration laws simply wish to work hard and raise their families. They do need to pay restitution, but we can’t treat them all like common criminals. The bill, indeed, contains provisions to crack down on serious criminals: the ultra-violent MS-13 street gang that menaces Latino communities throughout our nation. Another provision will require Customs and Border Protection to develop a national strategy for counting and reducing deaths along the borders. We have a moral obligation to protect the life of every person who sets foot on American soil.

To help alleviate the economic conditions in Mexico that drive much illegal immigration, finally, another provision will require the government to focus our foreign aid toward it. The new immigration law will help bring over 10% of the city’s population out of the shadows, enormously enhance our security, bring our economy the labor it needs, and teach the newest Americans essential elements of American culture, including reinforcing the need to speak English. The new immigration bill, in short, will honor the rule of law, make all of us safer, and uphold America’s longstanding heritage as a nation of immigrants.

There is no question that the immigration system needs to be fixed, and the comprehensive immigration reform passed by the Senate after months of negotiations and by a bipartisan vote was a monumental step forward. To repair what’s broken, we faced national security and economic challenges in a way that is consistent with our values and with the great American dream. Better border control and better treatment of immigrants are not inconsistent with these principles, and both are necessary for success.

The immigration legislation we passed in the Senate addresses these issues together. We’ve tried enforcement alone in the past, and it has failed. In the past 10 years, the federal government has spent more than $20 billion to triple the number of border patrol agents, build fences, and adopt other border enforcement measures. Yet, none of our efforts has been adequate. Illegal immigration continues to thrive. Our legislation strengthens our security through stricter worksite enforcement, tamper-proof immigration cards, and high-tech border controls. Yet, the only realistic way for us to know who is here and who is coming here is to combine strict enforcement with realistic reforms to fix the broken system.

Our legislation also protects American jobs and wages by bringing immigrants out of the shadows and requiring employers to pay fair American wages. Today, many sectors of our economy rely heavily on the hard work and contributions of immigrants. Their work is indispensable to the continued growth of the American economy, and our dependence on immigrants will be even greater in the years to come. But millions of these workers are here illegally. They live in constant fear of deportation, and are easy targets for exploitation by unscrupulous employers. They are forced to accept substandard wages and shameful working conditions, which in turn, makes it even harder for American workers to thrive. Our legalization program will enable decent men and women who work hard and play by the rules to earn the privilege of American citizenship. We can be both a nation of immigrants and a nation of laws. Our goals are clear: to bring immigrants out of the shadows, shut down the black markets, and restore the rule of law at our borders, in our workplaces, and in our communities.

By providing an adequate flow of legal workers and implementing strict new workplace enforcement provisions, our bill will greatly reduce unfair competition and downward pressure on American wages. Temporary workers and newly-legalized immigrants will be able to labor with dignity and bargain for wages and benefits under the full protection of our laws, making life better for them and for U.S. workers alike. Our plan offers a realistic alternative, not an amnesty. There is no free pass, no automatic pardon, no jump to the front of the line. But we do provide a sensible plan to encourage people to come forward to receive work permits and earn legal status. They will have to pay a substantial fine and go through rigorous security and criminal background checks. Those who want permanent status must pay all their back taxes, learn English, maintain a strong work record, stay out of trouble, and wait their turn.

The legislation we’ve passed combines increased enforcement and increased legality. Better border control and better treatment of immigrants are not inconsistent - they are two sides of the same coin, and neither can be accomplished in isolation. This is the most far-reaching immigration reform in our history. It is a comprehensive and realistic attempt to solve fundamental problems that have plagued our immigration system for far too long.