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

Non-Compete Clause
Non-compete agreements are always a hot topic of debate on the ERE discussion boards. This week, Les Noonan wants assistance on updating his company’s non-compete clause. David Rees offers some practical advice: get a lawyer. Although not an advocate of non-competes, he understands that it can be a complex issue since most states have very different rules. He also wonders why “employers are willing to constrain the freedom of a departing employee for the purpose of protecting their financial interests.” Les agrees with David’s comments and clarifies his request. He is actually looking for advice on a non-solicitation agreement. He wants to protect the “time and money” his company has invested in their current clients. Seems like a fair request to David but Nick Cobb feels that companies need to focus more on retaining their current employees. Maureen Sharib directs our attention to a recent case in California that you might want to check out if you are facing similar challenges.

Wednesday’s Question of the Day
I wanted to know if anyone thinks “The Color Career Counselor,” CareerBuilder’s latest tool that links job choices to favorite colors, would benefit recruiting. David Rees does not feel that this tool is validated. “Can you imagine going to an interview for a career as a computer programmer and they ask you why you choose the profession and you say…’well…I have always loved the color green.’” He later takes the test and comes to the same conclusion. Paul Davenport agrees that it is just for fun, not based in reality. Stephanie Wolf disagrees and feels that this tool can benefit college students who may feel lost with a career decision. John Kennedy wants to know if there are any tests that can predict job-based personalities. You might want to read John Zappe’s article from August 13 on the topic. Just curious…did anyone else take the test?

Internal Sourcing
David Hafernik wants to know the general policy of “internal recruiting” in most companies. Can employers recruit away from another internal manager? Are there limits? Pam Claughton worked for a large bank that had strict rules around internal recruiting. Employees had to work for a certain amount of time before they could post their resume internally. However, recruiters had great success working with the hiring managers and their direct reports to locate candidates from direct competitors. Each employee was then rewarded with an employee referral bonus. JB Smith agrees with Pam and adds that “we posted all positions internally for the first seven days then posted for external candidates. Employees were still allowed to apply after externally posting.”

Resume Search/Software Tool
Amit N is looking to purchase “resume search software” that will search multiple job boards, and wants to know if anyone has suggestions. According to Ashley Schettler, the decision will depend on the specific industry. She recommends TalentHook for IT but needs a more effective tool for recruiting in health care. Ken Kimbrough disagrees. TalentHook is “superb” and should generate resumes for all industries. According to Ken, “if you had databases, sites, etc that you wanted to search, they would accommodate your desires without much hassle.” Carly Eriksen recommends AIRS Sourcepoint. Does anyone else have other suggestions? We would love to hear them!

Work From Home Jobs
This topic always interests me since I work from home! Mack Will is also interested in learning of any “legit work from home jobs other than virtual recruiting.” Apparently, this is a very popular nationwide topic. Tim Esse referenced a local CBS show that addressed the topic and Christy Grimske reminded us that Google’s “Rat Race Rebellion” publishes a weekly list of legit work from home jobs. Susan Carson and Cassandra Firnstah both shared success stories of a virtual advertising company run by a group of women, and a customer call center.

Monday’s Question of the Day
The debate on whether or not job boards are obsolete is still going strong! It’s not too late to post a comment.

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.”

Outten & Golden attorney Justin M. Swartz said, “The fact is, about one in five U.S. adults has a criminal record, and a disproportionate number of them are African-Americans and Hispanics.”

An MSG official declined to discuss the complaint, but emailed us a statement saying, “Ms. Clarke pleaded guilty to assault. We conduct criminal background checks in order to ensure the safety of our fans and employees. This policy is not discriminatory.”

New York is one of only a handful of states that has laws specifically limiting an employer’s ability to exclude job-seekers with a criminal record. Federal courts have also extended Civil Rights Act protection to minorities with criminal records, requiring in the case of convictions for an employer to consider the passage of time, the nature of the crime, and its relationship to the position.

Whether or not Clarke’s complaint is upheld, Brian Poe, founder and CEO of ClearMyRecord.com, said the use of background checks to disqualify job candidates and dismiss current employees has become so widespread that it may be time for Congress to enact a Fair Criminal Record Reporting Act.

“A criminal record shouldn’t be a life sentence,” Poe told us. But with electronic databases that now routinely reach back to the sixties and even earlier, “something you did 20 years ago will hurt you today,” he adds.

Poe founded ClearMyRecord.com in 1999 to help individuals remove or seal criminal and arrest records and get mention of them removed from electronic databases. The site won’t help people whose arrest involved a sex charge or a minor, but it has helped thousands of others, including, the company reports, one person who won a presidential pardon this year.

Poe says his clients aren’t hardcore or career criminals, since states won’t permit them to clean their records. Most, he said, are minor offenders who made a mistake.

Typical, said Poe, is the case of a former police officer who was arrested for writing bad checks 18 years ago during a nasty divorce. The arrest has prevented the man’s hiring by other departments despite a clean record and steady employment in private security.

In another case, a career postal worker was fired after a periodic background check turned up his 1962 conviction for assault in connection with a Texas bar brawl.

It doesn’t take a felony or even a conviction to give someone a record. “These companies,” Poe said, referring to database firms that buy criminal and arrest records directly from the nation’s 50 states and 3,100 counties, “get all the records then resell them to smaller companies. Employers use these services and don’t (distinguish between) an arrest or a conviction.”

Because ClearMyRecord can’t help everyone convicted of a crime, Poe started Hard2Hire.org as a non-profit job service for ex-offenders. Since launching in June the site has grown to about 2,000 weekly visitors and, says Poe, several companies have agreed to consider hiring ex-offenders.

Poe explains that many companies with blanket policies against hiring ex-offenders may be willing to modify them in certain cases. “We go straight to employers and ask them about their policy,” he said, describing a give-and-take in which he’ll search for the threshold — say a 5- or 10-year-old property crime and clean record since — where a company might relent.

“We see this all the time,” Poe said, “where an old conviction is holding someone back. We need a Fair Criminal Record Reporting Act like the Fair Credit Reporting Act to keep one mistake from being a life sentence.”

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:

Are you front loading your “willingness questions?” An employer, Silberman says, “need not ‘consider’ candidates not willing to perform the job,” such as people who (depending of course on what’s needed for the specific job) aren’t willing to travel, work overtime, work weekends, or work at a specific salary. An employer could set up a special email address for applicants, he says. When candidates send in a query about a job, an employer could set up an auto-reply email asking them such “willingness” questions. If candidates get weeded out, the employer, Silberman says, doesn’t need to consider them to be “applicants.”

Are you strategically using data-management techniques? An employer can arbitrarily decide to consider the first, say, 20 people who applied for a job. If there are 20,000 other applicants who the employer didn’t consider, that’s generally fine, Silberman says. An employer can do the “last in the door” method (consider the most recent applicants for the job) or “first in the door” (consider the first people to apply), or randomly choose a certain number of people to consider.

Are you properly designing and using “basic qualifications”? You shouldn’t require an accounting degree, for example, for an HR job, if it’s not necessary. You shouldn’t require a college degree just because it’s a common practice to do so in job ads; there should be a reason for such a requirement. Qualifications should be objective, such as “two years’ experience” and should not be comparative, such as “one of the top 10 accountants in the city.”

The bottom line, Silberman says, is that when it comes to compliance with the job-applicant rules, what matters is not just who you’re hiring but who is being considered in your pool of applicants.

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.”

• 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.”

I listed six below and wanted to hear from you on #7. Let me know what you think, add a comment to one of these groups, and tell me your suggestion on the final discussion.

1. Late Fees… Dianne Luecke worked as a TPR for 3 years with no late fees…until now. She wants to know if she can add finance charges after the 30 days included in the agreement. Judging by the number of responses, it sounds like Dianne was lucky — late fees are common. Ken Salinas summed it up best by advising Dianne to be patient, stay positive, and keep constant communication with her client. Wendy Rixon explained how things work in the UK with her clients and and Robert Stein recommended offering a discount for fees paid on time, bill in advance of each period and offer a credit card processing option (PayPal). Joe Ray advised Dianne to rethink the charge if they are a big client…these things take time.

You might also want to check out the Law Suit Fee Agreement started on 6/19…

2. Monday’s Question of the Day…After reading an article on non-compete agreements, I asked if they keep potential candidates from joining an organization. Willie Finch agrees that they need to be well-written to be effective and believes that the priority should be on protecting the organization, not the new employee. Maureen Sharib added that these agreements should be reasonable. David Rees addressed the negative impact of non-compete agreements on the workplace and the economy. Kenneth Greenwood received some advice from others on protecting his database and if a non-compete was his best option.

3. Facebook and MySpace for Business… Susan Nickerson is seeking advice on creating a corporate branding page on these sites. Manoj Tiwari turned the discussion in another direction by asking the tough question…Are people really using these sites for employment purposes? This lead to a greater discussion about generational differences. Steve G works closely with Millenials and claims that they do not use these sites for job seeking or employment references. Jeff Altman writes that these sites and younger job seekers are not looking for the “J-O-B” but for a corporate culture that meets their needs. Kelly Dingee advises us to skip the advertising and go directly to Indeed or SimplyHired.com for job seekers and recruiters; sourcers should use XRaying and FlipSearching.

4. Help/Suggestion…Mark Will faced a challenge when a hiring manager posted the wrong salary range and the candidate after receiving the lower salary offer was tempted to pursue another job interview that would offer more money. Nick Cobb, David Hafernik, and Jaymie Spencer warned against giving salary ranges and managing expectations from both parties from the beginning. Peter Kempton and Scott Stuckey offered advice on negotiating with both the hiring manager and candidate. Marc Beacon recommended checking the cost of living index (www.bestplaces.net) and Jay Lowry recommended asking for a sign-on bonus.

Good news! On 7/3, Mark’s candidate accepted the offer.

5. Do Passive Candidates Become More Passive in Bad Economic Times?…Sam Medalie did his research, asking managers their opinions on finding passive candidates in today’s economy. Sadly, the majority of responses indicate “yes.” Most candidates feel that it is too risky to make a job change. Trevor Brooks went from an average of 50 resumes a week in 2007 to 15-20/week today. John Kennedy reminded us that this downturn is different since we are not seeing a large number of layoffs.

6. Friday’s Question of the Day … I was talking to a friend of mine who is a corporate recruiter and works closely with several third-party recruiters. She recently set up an interview with a candidate recommended by one of the TPRs, only to find out that the candidate had applied directly through her organization. I asked for advice and the overall response was to check the ATS. Geno Zertuche suggested reviewing the TPR agreement and Ash Devane shared the clause his TPR firm uses in these situations. Tanya Edmonds simply stated if the candidate applied less than a year ago, no fee. If the candidate applied over a year ago, the fee should go to the TPR.

7. What did I miss?….

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.

The number of visas available — 85,000 — is an arbitrary number with no basis in demand. It has not been adjusted despite the fact that unemployment among high-tech workers is about 3% and there is no evidence whatsoever that skilled immigrant workers have any negative impact on the wages or the employment of domestic workers. Worse yet, H-1B visas are now allocated by lottery, i.e., at random. Need or the value of particular skills is not a factor.

Limited Options

There are some options available to employers frustrated with the situation. L-1 visas are one. These allow a company to transfer employees to the U.S. from their offices abroad for periods of up to five years. Employees must have worked for the company for at least one year before an L-1 can be issued. Unlike H-1Bs, there is no cap for L-1s.

Another option is the EB-5 program. Richard Herman of Herman Associates appraised me about this. Under EB-5, foreign investors can receive a green card if they invest at least $500,000 in a designated “investment center” and create 10 direct or indirect jobs, or $1 million outside the center. There are 10,000 green cards available under the EB-5 program, but only a small fraction get used; last year the program benefitted just 779 individuals. The program follows the lead of similar programs in Australia and Canada. That is why Microsoft has a development center in Vancouver that attracts a lot of talent.

Some communities are using the EB-5 program to create areas designed to attract immigrant talent —high-skill immigration zones. The Cleveland Council on World Affairs is leading a pilot initiative called the Talent Blueprint intended to bring together public and private entities to collaborate around the attraction of foreign talent and capital into Northeast Ohio. The region has over 10,000 openings for workers in fields related to bio-tech. Richard Herman and his associates are circulating among a large group of national thought and policy leaders the idea of Cleveland and other Rust Belt cities creating these zones to welcome both foreign talent and capital back to communities once known for their large immigrant populations that have now seen that high rate of immigrant influx migrate to places such as Atlanta, Silicon Valley, and Raleigh-Durham.

No Easy Solutions

The options described above are good ideas but they can have a small impact at best. The problem of talent shortages needs a comprehensive solution in terms of both domestic policy and immigration. But there is no one leading such an effort. Ideally there would be a cabinet-level position focused on talent. The Bureau of Labor Statistics projects 1.64 million job openings for IT professionals between now and 2016. Yet, despite all the evidence that problems of supply are worsening, immigration policy for skilled talent remains entangled in political posturing and colored by issues of illegal immigration.

Organizations like FAIR and the self-styled Center for Immigration Studies, which make no differentiation between an agricultural worker and a software engineer, drum up wild theories about a gigantic conspiracy between employers to hire immigrant talent at-below market rates and deprive domestic workers of jobs. One of their more popular claims is that there is sufficient supply of domestic workers for high tech jobs. It’s difficult to square that with the fact that undergraduate enrollment in computer science programs has been in near free-fall since 2000, down by almost 50%. Another is that large numbers of H-1B visa holders become illegal aliens. But all that rhetoric does have some effect. When NAFTA was passed, the TN visa category was included only after the White House accepted demands that Mexican professionals not be given the same preferential treatment as Canadians. It took until 2004 to remove this bow to what some commentators described as the Titanic principle (first class gets better treatment than steerage).

The recruiting industry is not in a good position to influence this situation. The industry is not an organized lobby. No lobbying firm represents recruiting interests in Washington, while even North Korea and Ultimate Fighting are represented. Then again, it may not help much. Congress usually has matters of far greater national importance to deal with — such as investigating the New England Patriots for stealing their opponents’ signals, and the recently passed Primate Safety Act to ensure the proper treatment of monkeys.

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.

TMI on MySpace?

Does the idea of lurking on someone’s MySpace page make you yell, “Too much information!” or do you view it as a (lurid) source of quality screening? What about reading someone’s biographical data on LinkedIn? Though stylistically very different (LinkedIn is more button-down; MySpace is more, er, unbuttoned?), these websites provide glimpses into the backgrounds of hopeful job candidates. Just remember two things if you decide to spend more time on these sites: failure-to-hire lawsuits can be a real headache, be it from MySpace, Google, or any other website, and avoid “friending” Natasha Kone on LinkedIn at all costs.

Genie on a Job Board…

In the June 26 issue of WEDDLE’s Newsletter, by industry analyst Peter Weddle, he advises that the key to using the Web for employers and job seekers is to manage your expectations.

“What’s out of whack is our perception of what the Internet can and cannot do,” he says. Though, “this technology is probably the single most effective means of connecting” employees and employers, it takes time to work. He advises job-seekers, in particular, that “The Internet is not some genie,” nor is it “a magic carpet that can carry you off to employment bliss the minute you hop on. No, the Web for all of its reach and technological power is bound by the pace of the humans who use it at the other end–the employers and recruiters who turn to the Web to find new talent.”

Government Security Clearance…

Weddle also reports that ClearanceJobs.com’s recently released snapshot of security clearance salaries finds that those who have a security clearance earn 25% more than those who do not. This is not without hurdles, because “you have to be able to pass the intensive screening that’s involved in applying for a clearance, plus be in a job where a clearance is required for job performance. Even then, it may take a long time to acquire this advantage, as the backlog of Federal background investigations is already huge and growing,” says Weddle.

]]> http://www.ere.net/2008/06/26/the-new-i-9-form-and-other-screening-trends/feed/ http://www.ere.net/2008/06/17/the-disney-look-and-more-mid-week-chatter/ http://www.ere.net/2008/06/17/the-disney-look-and-more-mid-week-chatter/#comments Tue, 17 Jun 2008 23:44:31 +0000 Todd Raphael http://www.ere.net/?p=3206 –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.

Pick a Card, Any Card

The European Union has just green-lighted the Blue Card. Modeled on the Green Card, the Blue Card (the color of the EU’s flag) will allow skilled foreign workers to work and live, along with their families, anywhere in the EU’s 27 member states.

Singapore, Japan, and Hong Kong have implemented similar programs, following the lead of Australia and New Zealand. The goals of all these programs are the same: to attract skilled talent and divert some of the talent that flows to the United States.

Currently, 85% of global unskilled labor goes to the European Union and only 5% to the United States. In contrast, 55% of qualified immigrants head for the United States and only 5% to Europe. With the Blue Card, the EU hopes to reduce the imbalance.

The EU and other countries may well succeed because their criteria for handing out permanent residency permits and work visas are much more liberal than those in the U.S., and the procedures will be simpler. Some allow employers to hand out residency permits along with offer letters.

In the EU, for jobs where a citizen is not available, an immigrant would only need to show a degree and three years of experience. Recognizing the need to attract young talent to Europe, immigrants under age 30 would have even easier requirements in qualifying for Blue Card status.

Setting Out the Unwelcome Mat

Our system of providing work visas and residency permits leaves much to be desired. It can take five to 10 years to get a Green Card and the system heavily favors family ties instead of skills. The process is byzantine, involving multiple government agencies and arcane procedures. The number of annual work visas is still only 85,000 despite clear evidence of a shortage of skilled workers. For example, the unemployment rate in computer- and mathematical-related occupations is about 2.1%, or full employment when allowing for people in transition between jobs. Incredibly, the number of visas was actually lowered from 195,000 in 2004, to a level that existed 15 years ago.

In testimony before Congress, Bill Gates had argued for elimination of the cap on H-1B visas. But in pandering to groups like FAIR (Federation for American Immigration Reform) and other isolationists, the solons in Congress, in their infinite wisdom, have chosen to do little about the problem.

The problem is mostly political. Anti-immigrant groups are opposed to any loosening of immigration standards, though immigrant workers make up barely 3% of the skilled labor force and disproportionately contribute to the economy. A quarter of all Nobel prizes won by Americans have gone to immigrants, and a similar proportion of IT firms were started by Indians and Chinese.

A study by the National Foundation for American Policy found that the average S&P 500 company creates five new domestic jobs for each highly skilled H-1B visa employee it hires. By raising the H-1B cap, Congress would insource jobs, allowing companies to fill vital positions and expand their operations at home instead of moving overseas.

Reductions in Supply

Even if the number of work visas is increased, the supply of talent is already getting diverted from the United States. From 2001 to 2003, applications from foreign students to American universities dropped by 26% while they increased in the United Kingdom (36%), France (30%), and Australia (13%).

A 2005 study by the Pew Hispanic Center revealed that temporary legal visitors (the vast majority are skilled workers and university students) dropped to 185,000 in 2004 from 268,000 in 2000.

There’s also a major increase in departures among skilled workers returning to their homelands. A survey by Duke University found that one in three new immigrants holding high-tech jobs in the U.S. plan to leave. Between 10% to 50% of the R&D staff of Indian and Chinese high-tech firms are returnees. The reasons are not hard to discern; with comparable jobs available at home, workers have lesser incentives to tolerate the long waits and uncertainty in the United States.

What compounds the problem is that the supply of talent is simply not adequate to keep up with demand, here or anywhere. The U.S. produces the highest number of engineers per million residents of any country in the world, but that’s only about 137,000 engineers with bachelors’ degrees every year.

Supply from elsewhere is not sufficient to meet all the demand. In 2005, Fortune magazine estimated that China was producing some 600,000 engineers and India 350,000 annually.

These numbers have turned out to be a fantasy. A report by the McKinsey Global Institute said more than half of those “engineers” would be no more than technicians in the United States.

The actual numbers are more like 351,000 for China and 112,000 for India. And that’s not likely to increase much, as it takes decades for a top-flight academic institution to get established and start producing quality talent. The Indian Institutes of Technology, considered among the best in the world, can only produce 5,500 graduates every year, more than 50 years after its inception.

The Future

There are some glimmers of hope. Representatives Gabrielle Giffords (D?AZ) and Lamar Smith (R?TX) have introduced bills raising the cap for H-1B visas. These are the Strengthen United States Technology and Innovation Now (SUSTAIN) Act and the Innovation Employment Act.

The SUSTAIN Act would temporarily raise the cap to 195,000 for FY 2008 and FY 2009, while the Innovation Employment Act would initially raise the cap to 130,000 and allow the cap to increase the following year if it is reached.

Raising the cap is necessary, but more should be done to make H-1B visas flexible. Their number should reflect the economy’s need for high-tech workers, not arbitrary limits set by Congress.

In general, Congress’ record on improving the situation is not encouraging. The last attempt to reform immigration, the Security Through Regularized Immigration and a Vibrant Economy (STRIVE) America Act, adopted the worst features of other countries’ immigration programs. It would have been better called the Stop Companies Recruiting Effective Workers (you can figure out the acronym for yourself) America Act. Thankfully, it did not pass.

But prospects for recruiting are not good. The EU hopes to attract 20 million skilled workers over the next two decades as a result of the Blue Card program. That may be overly optimistic but it will undoubtedly impact the flow of talent to the United States. How much is anyone’s guess.

Without drastic action, the gap between demand and supply will continue to widen. Recruiting will only get much, much harder. If there’s a bright side to this, it’s job security for recruiters.

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.

Immigration

John McCain: The senator from Arizona has long supported immigration reform. He was the sponsor of the immigration Reform Bill of 2006. Had it been enacted, the bill would have made hiring immigrant workers easier, including a guest-worker program for temporary labor. On the campaign trail, he has adopted a less strident tone, but overall his support for reform remains firm. Rating: A-

Barack Obama: On immigration, Senator Obama’s positions mirror those of Senator McCain. His support for reform and a guest-worker program has been unwavering. But, he did vote to support a reduction in the number of guest workers who could be admitted, had the Immigration Reform Bill of 2006 passed. Rating: A-

Hillary Clinton: The junior senator from New York has a mixed record on immigration. She has strongly supported immigration reform, including a path to legalization for illegal aliens. She is the sponsor of the Civil Rights Act of 2008, which, among other things, would allow illegal aliens to collect back pay. Crucially though, she has not supported a temporary-worker program, which would address much of the labor shortages that lead to the demand for immigrant labor, especially in agriculture and construction. She, too, voted to reduce the number of visas that would have been available in a guest-worker program. Rating: B-

Support for Business

John McCain: The senator has an unremarkable record concerning business. He has supported programs targeted at enhancing competitiveness but, by his own admission, his understanding of economics is limited. For example, blaming pharmaceutical companies for high prices reflects a lack of understanding of the mechanics of a capitalist economy. On the plus side, he has been an advocate for free trade and open markets. Rating: B

Barack Obama: The senator from Illinois has not been around long enough to establish much of a record, so any conclusions on his support for business have to be drawn from his stated agenda. His positions are a mix of good and bad. He supports programs for job creation, investing in high-tech manufacturing, tax credits for research and development, and widespread deployment of broadband. On the negative side, he supports maintaining the openness of the Internet on the principle that network providers should not be allowed to charge fees to privilege the content or applications of some websites and Internet applications over others. He fails to recognize that allowing this would negate the need for the government subsidies he proposes to use to increase access. He also wants to expand FMLA to cover employers with 25 employees or more (down from the current 50) and make it paid leave. However well intentioned, this creates an extra burden to smaller employers that are responsible for almost 60% of all jobs. Laws like this are only a deterrent to employment. Rating: B-

Hillary Clinton: The senator has received considerable support from business, including over $12 million in contributions, mostly from larger companies. She does support programs that can foster a better climate for business. Her innovation agenda would provide billions for research on energy alternatives, funding for awards promoting technology innovation, and tax cuts for research and development. She also wants to fund incentives for students to enter math and sciences programs. While this is all good, the programs she supports are very narrowly focused and would do little to benefit small businesses which, as mentioned above, are the main creators of jobs. Also, technology is not the only type of innovation. McKinsey estimates that half of all productivity growth since 1995 has come from innovation in business processes, such as hyper-efficient supply chains, led by Wal-Mart. This kind of innovation was not even considered by most companies, and definitely not by the government, until it occurred. Rating: B+

Employment-Related Legislation

John McCain: The decorated veteran has had very limited involvement in employment-related legislation. The only clear example was his no-vote against the points-based immigration system that would have admitted workers based on a government-created formula. Rating: Not Rated

Barack Obama: Mr. Obama has some admirable qualities, but apparently an understanding of labor economics is not among them, as evidenced by his sponsorship of the Fair Pay Act. This bill has the laudable goal of ensuring that supposedly male-dominated occupations are not paid more than female-dominated ones. Should this bill become law, it would require employers to determine compensation based on assessments of social utility, not market demand. So, it could become necessary to ensure that nurses are not paid less than software engineers. Enforcement would be managed by the Labor Department that would set wage scales. This is how it was done in the Soviet Union. Even the Chinese abandoned such ideas decades ago. Rating: D

Hillary Clinton: When it comes to legislation that affects employment, the former partner of the Rose Law Firm in Little Rock appears to be mainly focused on legislation that can supplement her former colleagues’ incomes.

The Civil Rights Act of 2008, mentioned above, would eliminate existing damage caps on lawsuits brought under Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act and add compensatory and punitive damages to the Fair Labor Standards Act. This bill would also make it easier to bring and win “disparate impact” lawsuits where discrimination in employment is alleged. Just being able to show a statistical discrepancy would be enough to claim and win a discrimination lawsuit. There would be no need to show that an employer’s hiring criteria are discriminatorily applied or used with discriminatory intent. This overturns several court rulings that have deemed statistical discrepancies to be insufficient proof of discrimination. The results of this legislation passing are obvious (as are the motivations behind it): It would force employers to abandon perfectly legitimate hiring criteria and also make them more vulnerable to litigation. More than likely, employers will respond by creating unique titles and apparently different jobs or, worse, creating quotas to avoid the possibility of ending up with a statistical discrepancy.

Mrs. Clinton is the sponsor of The Paycheck Fairness Act (similar to the Fair Pay Act) which would do almost exactly what the Fair Pay Act does. Apparently “35 years of experience” have been insufficient for the senator to understand that tinkering with a free market rarely works. Rating: F

Senators Clinton and Obama are the sponsors of the Fair Pay Restoration Act which, if passed, would eliminate any statute of limitations in many employment-discrimination cases. Your employer could be defending employment decisions from 30 years ago.

Conclusion

Lyndon Johnson once said that the bar to run for office was not very high. It only required that a person not be a convicted criminal or certified insane. While the current crop of candidates is certainly far above that, that they do prove that there’s no perfect candidate. The record is decidedly mixed and whatever intentions someone may have today may well flounder on the rocks of Congress. You can reach your own conclusions about who would make a good president. Perhaps you already have.

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.

However, it stands to reason that any legislation that affects an estimated U.S. population of 12 million illegal immigrants will have a larger reaching impact on all industries.

Another 2007 event further highlighted the role played by immigration regulation on the talent acquisition process. Companies filed applications for twice the number of available H1-B visas on the first filing day for 2008 corporate applications. The current cap on available H1-B visas remains at 65,000 annually, with most visas going to skilled workers, often in the IT and engineering professions.

If the current visa ceiling remains, the increasing trend toward globalization of companies and workforces assures that H1-B visa demand will continue to outpace supply. While this trend forces HR to be ready to file on the first day applications are accepted, filing on time is no assurance that HR leaders will prevail in the H1-B visa war. Currently visas are awarded via a random lottery system, so it behooves corporate filers to have alternate plans for sourcing hard-to-find professionals, should their quest for H1-B visas fall short of their needs.

“While the expectation is that legal wrangling on both the ‘No Match’ and the CIR measures will continue for awhile, the implications from the ‘No Match’ program set some clear expectations about what will be required from employers under immigration reform,” says Paul Colman, director with VISANOW, an immigration service provider.

“Employers need to plan for the passage of immigration-related legislation, because indications are that the labor market will be impacted. We think this will be a hot topic as we head into the elections in 2008, so we are advising all responsible HR professionals to closely monitor the situation and have alternative plans authored and ready to go in anticipation of the impact resulting from the most likely legislative scenarios.”

“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.”

The court, according to the Tulsa World, issued temporary restraining orders against both IBM and Manpower directing them not to contact or communicate with AcctKnowledge employees working at IBM. Temporary orders are typically issued by a court to preserve the status quo until it has a chance to review the merits of the case.

While that may be some comfort for AcctKnowledge, the staffing firm is not getting support from the industry. One observer acidly commented that the lawsuit says more about AcctKnowledge’s lack of understanding of the rules of the game than it does about any ethical breach.

“Really what this demonstrates is the flawed knowledge that AcctKnowledge comes to the market with,” says Master Burnett, managing director of recruitment consultant Dr. John Sullivan & Associates. Consolidating staffing services is not unusual, Burnett explains. Though it is usual for the company to conduct the informational meeting for the affected workers, Burnett’s view is that Manpower’s sidewalk recruiting “did not cross the line.”

“It is in the best interest of the employee to do what Manpower did,” offers Burnett. “They did the same thing every other company would do.”

Whatever the contractual issues in the case, Philadelphia lawyer Jim Matthews, co-chair of Fox Rothschild’s labor and employment practice group, says workers have a right to seek work with whomever they want. And companies, generally, have a right to recruit whomever they choose.

In this area of law, he explains, it’s very much the facts of the situation that dictate whether an employer may be held liable for wrongly interfering with a business relationship. In staffing cases, that would be efforts by one company to recruit the workers of another.

While, he says, the “tactics very much can make the difference,” distributing informational fliers, invitations to interview and the like are fair game. With recruiters becoming ever more aggressive as a result of the tightening labor market, Matthews suggests they apply this handy rule: “If you would be uncomfortable explaining what you are doing to Morley Safer (of 60 Minutes), don’t do it.”

Manpower declined to be interviewed for this article, but issued a statement noting:

“Business is won and lost every day in the highly competitive employment services industry. Contrary to allegations raised by a recent lawsuit, it’s normal for contractors at an incumbent firm to be recruited by a new firm when a client transitions from one employment services provider to another… The practice of recruiting during a client transition keeps the contractors gainfully employed while ensuring that their expertise continues to be available to the client.”

Neither IBM nor a second staffing that has since also filed suit, Accounting Principals, returned phone calls.

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:

1. Calculate the pass rate of your majority demographic group.
2. Calculate the pass rate of your minority demographic group.
3. You have adverse impact if the fail rate of the minority group is more than 80% of the majority group. For example (same job): male pass rate = 50%, female pass rate = 35%. Test: ….80% x 50% = 40%; however, only 35% of females are hired; therefore, the organization is guilty of adverse impact against females.

Does that sound complicated? Well, maybe this article will help clear it up.

What’s an “Applicant?”

This used to be quite clear: applicants were people who showed up and filled out a form. Now, no one is quite sure when a person becomes an applicant. Is it when 100 people respond to an Internet post? When 50 people are phone-screened? When five people are invited for an interview?

Although it will probably be years before there is a universally accepted definition, every organization should have a formal policy that makes a reasonable argument for when someone qualifies as an applicant. Your local labor lawyer should be able to help you draft something that works. Just be sure to follow policy until the legislators tell you otherwise.

Every Organization?

Generally, only larger organizations (e.g., with 15 or more people) need to be concerned; however, as your public presence grows, so does the public’s perception of your financial pockets. Remember, just because most challenges are settled, not court ordered, you don’t get off cheap. Also, some organizations are exempt, so be sure to check with your local labor law attorney.

What’s a Minority?

Certain groups are usually people who are protected by law: the disabled, different races, females, 40 and over, people with different beliefs, and so forth. Check with your local labor lawyer.

Why a Labor Lawyer?

You wouldn’t go to a podiatrist if you had a heart problem, would you? Law is a pretty big field and corporate attorneys are generally skilled in contract and business law. Labor law is a specialty. You usually get better advice from a specialist than a generalist.

Now, one more problem. My experience with corporate and labor lawyers is they know the law, but they don’t know how to build HR systems that keep you out of trouble. In fact, in the last 17 years of practice, I have only met one attorney who understood how to build a legally credible hiring system. The rest wait until the end of the meetings and quietly ask me for copies of the DOL Guidelines.

What’s Adverse Impact?

Adverse impact is when a selection system (applications, interviews, tests, resume screens, sources, and so forth) rejects too many legally protected applicants using the 80% (i.e., the 4/5) rule. But that raises another question: is adverse impact illegal? No.

Organizations have the right to reject unqualified applicants (even people who belong to protected groups) as long as they can produce the following:

1. A professional job analysis.
2. Proof that scores on tests predict future job performance.
3. Evidence that tests are based on job requirements and business necessity.
4. Evidence they constantly look for better ways to reduce adverse impact.

Remember, interviews are tests.

Wrong-Headed Ideas

Some folks argue that organizations should “dummy-down” their jobs so anyone and everyone will qualify for a job, regardless of protected group membership. To the best of my knowledge, most of these folks are either politicians running for public office, politicians trying to keep their job, or people who have never run a business.

Unless you are willing to hire everyone who applies and promote everyone who asks, you probably want to use some kind of skills test.

Statistical Analysis

Adverse impact is determined by clustering people into groups and looking at statistics. This is not always the way the world works. For example, it would assume that every female, older candidate, member of a minority group, etc., are equally skilled for a given job. Common sense tells us this is seldom the case.

When it comes to statistical analysis, it takes big numbers to get trustworthy data (about 100 people in each tested category). Testing for adverse impact means you need at least 100 people from each racial group; 100 people from each age group; 100 people from each, well, you get the picture. These kinds of numbers often take a long time to accumulate, and in some hiring locations, may take a generation or two!

Oh, and if you want to get technical, the last time I heard, the EEOC examines your hiring data using cross-tabulation and the Cochran-Mantel-Haenszel statistics.

And you thought the 80% rule was complicated!

What’s Next?

Suppose you fail the adverse impact test. What happens then? You break apart the hiring process and examine the pass rates at each hiring-decision step (i.e., resume review, phone screen, test, interview). Don’t collect this data today? That could become a nasty problem in the future. Are third-parties exempt? Sorry, third-party recruiters, as well as anyone else associated with screening and hiring, are affected by these rules.

What’s the Risk?

While the DOL does not force organizations to follow the 1978 Uniform Guidelines on Employee Selection Procedures, it uses the guidelines as standards for adverse impact charges.

Few court cases, you say? Check out this link to the EEOC website and make your own decision. Be sure to check out the settlements page. The real cost is bad hiring decisions. Researchers estimate bad hires can cost from 20% to 50% of base salary, each year! (By the way, employee selection is not limited to hiring. It also includes promotions, terminations, and a host of other selection decisions).

Blending Best Practice with the Guidelines

I’ve presented the EEOC as a big stick throughout this article. At its foundation, the guidelines are not only a government recommendation, they are a best practice. That is, every organization can reap financial benefits by following them.

Who could argue against every job having a trustworthy set of basic, measurable competency standards? Or if every test and interview were as accurate and relevant as possible? Of if every job-qualified person was treated fairly, and every hiring and promotion system was monitored? Finally, who could argue against tighter hiring standards that lead to better employees?

What it Takes

Hiring is not about sourcing. Sourcing is only one part. Hiring is about defining standards, accurate measurement, and monitoring. In other words, it is about getting people with the right skills in the right job.

HR is generally a transaction-oriented department that processes work orders, mass- screens candidates, conducts workshops, and processes benefits and paperwork. These commodity functions can be easily outsourced. Imagine the value HR could bring to management if HR truly controlled the quality of employees who were hired and promoted?

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.

What is Labor Certification?

Issued by the DOL, a permanent labor certification allows an employer to hire a foreign worker to work permanently in the United States. It is one of three steps in the process for obtaining employment-based green cards.

The typical employment-based green card process can be broken down into the following three stages:

• The Program Electronic Review Management (PERM) Labor Certification and submission of FORM ETA 9089.
• Form I-140. An employment-based immigration petition.
• Form I-485. The adjustment of status application for permanent residency (which ultimately results in the issuance of a green card).

Employers are required to file a PERM Labor Certification application with the DOL’s Employment and Training Administration on behalf of the employee who they wish to sponsor for permanent residence. This is essentially a labor market test whereby employers are required to show that there are no qualified and interested U.S. workers available to fill the position.

Changes to the Labor Certification Process

The DOL now prohibits the substitution of alien beneficiaries on permanent labor certification applications, which means employers cannot substitute a new employee for labor certification if the original employee who applied has left the company.

Before the new ruling, substitutions were often used to reduce the amount of time needed to provide a green card for employees. This provided a great recruiting advantage as it gave employers the opportunity to provide an employment-based green card sooner to potential employees.

Why the Change to Refuse Substitutions?

The DOL is trying to reduce the opportunities for fraud, aiming to prevent the sale, barter, or purchase of permanent labor certifications. With faster labor certification processing, the expectation is that the need for substitutions will be reduced.

Employers must now abide by the 180-day “validity period,” which limits the filing period for an approved permanent labor certification to 180 calendar days. This directly supports Form I-140, which is the second step for obtaining an employment-based green card.

This particular change can be a burden to employers as the time required to compile the necessary information for labor certification is often more than 180 days. The clock starts when the labor certification approval is issued, not when it is received, so there can be a significant gap in time from when the labor certification is approved online to when the employer receives the original labor certification approval in the mail. Thus, the 180-day deadline forces employers to constantly monitor online approvals.

In addition, the time required to compile the necessary information can push this 180-day time limit if employers are not properly prepared. The filing of an I-140 petition requires the interaction of the employer, the attorney, and the employee.

The employer must supply information regarding the company and its finances. For example, there can be legitimate delays in obtaining financial documents from the employer for the most recent tax period, even if the taxes are filed within the permitted timeframes.

The employee must supply proof of his/her qualifications. For example, if the employee needs to obtain his employment verification letter from abroad, the entire timeframe will likely extend even further.

Employers are now required to pay the costs of preparing, filing, and obtaining the labor certification application and can no longer pass along the costs incurred for this application to their employees. The new rule states employers cannot seek or receive payment of any kind for activity related to the labor certification. This includes payment of attorney fees and advertising costs as well as:

• No monetary payments.
• No wage concessions, including deductions from wages, salary, or benefits.
• No kickbacks, bribes, or tributes.
• No in-kind payments.
• No free labor.

This change only applies to the labor certification (ETA 9089) application, as the I-140 immigration petitions and I-485 adjustment of status applications are not included under the new revisions. These fees can still be paid by an employee.

Employers who offer the opportunity to obtain an employment-based green card as a recruiting tool will no longer be able to pass these costs on to their employees.

To successfully manage the newly revised foreign employee labor certification filing process, remember to consistently monitor progress to ensure the case keeps moving forward by tracking the multiple forms, deadlines, application stages, and the expiration dates.

Also, take the necessary steps to correctly prepare and gather the required support documentation beforehand to ensure you can move forward with the Form I-140 submission upon receiving labor certification approval. Once a labor certification is approved, employers can immediately file the I-140 form for their employees if they are prepared. Gathering the right documentation for the labor certification application can save employers precious time and is a key to filing your Form I-140 within the 180-day window.

Although the recent changes from the DOL will impact an employer’s recruitment strategy and budgetary plans for the future, opportunities do exist to create a recruiting advantage through your labor certification process. Approaching immigration strategically can help employers keep the process moving forward and help reduce the time and costs associated with obtaining labor certifications.

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.

If you’re a third-party search firm, has your hiring manager ever told you that the candidate is “too set in his ways,” “too senior for the position,” or some other comment which invariably relates to age? If you are the hiring manager, how many times has someone in the company told you that her ideal candidate is male, female, young, white, or minority? Even things that might seem like positive discrimination generally are illegal. Condoning such practices means you are violating employment and civil rights laws as well as doing your client a disservice.

How to Deal With Discrimination in Hiring

Telling your client or supervisor that she is using discriminatory hiring criteria is clearly not going to improve the relationship. Or is it? That all depends on how you phrase it. Consider the following seven steps to avoid legal pitfalls:

1. Tell your client to be as specific as possible. Finesse a response to these kinds of comments in terms your client can understand and appreciate. For example, conducting too broad a search wastes your client’s time and/or money. When you receive a comment about wanting candidates based on an innate characteristic, tell your client that, actually, screening clients based on gender or age is not an efficient way to search. What you would like to know instead are the nuances of who makes an ideal fit for an open position. You might even point out that trying to identify ideal candidates based on inherent characteristics is not a reliable indicator of performance. Remember that in order to offer something that your firm or client can’t get on its own, you must be an expert in human capital. This requires you to know the more subtle indicators of performance like background, experience, and disposition.
2. Respond in terms of “protecting” your client. When faced with potentially discriminatory comments or critera, respond in terms of your clients’ best interest. For example, the hiring manager advises you that the supervisor for an open position has a staff of all women, works well with women, and women candidates are ideal. Phrase your response in terms of viability of the search. You might say, “Believe it or not, if you or I favor women in the job search, you’re potentially exposing the company to a lawsuit.” Again, rely on the fact that you are an expert, and that as an expert, it is your duty to conduct a search that has long-term viability. Reassure the hiring manager (or if you are a hiring manager, whoever is giving you the directive) that you are adept at producing candidates who are both an excellent fit for the job and whose selection won’t pose problems for the company. If the response is that this supervisor simply won’t be favorable to male candidates, suggest that she alter her selection criteria because what she is currently doing creates legal, and therefore financial, risk to the company.
3. Know the law. Some criteria is acceptably discriminatory, such as education level, experience, and even physical ability in certain cases. What is illegal varies from state to state, so familiarize yourself with local employment laws. For instance, California’s Department of Fair Employment and Housing offers substantial protections to employees, more than in more conservative states. Before you play confidante to your client, make sure your facts are up to date. If you don’t know, or don’t want to deal with it, consult an employment lawyer.
4. Make your interviews squeaky clean. If you will be advising your client about an interview, or conducting the interview yourself, know what questions you should never ask a candidate. These questions aren’t always obvious. In California, for example, it’s illegal to ask the age of a candidate. This means that asking the year of someone’s high school graduation is also illegal, as is any other question that can allow an employer to compute age.
5. Don’t ever?If all else fails, avoid selecting candidates, or asking questions of them, with respect to race, age, sex, national origin, sexual preference, marital status, physical ability, and need for accommodation. Look on your state’s employment department website for specific things you should/should not ask.
6. Examine your own biases. We all have biases; it’s just a question of whether we are mindful of them. A colleague in the San Francisco Bay Area recently relayed that she interviewed an Asian-American woman who had grown up in Texas. She asked the woman, “Are you originally from Texas?” This colleague had no bias against the woman, per se. She liked her and subsequently hired her. But she confided later that this remark could have really damaged her if she had not chosen the candidate for the position. Her question really stemmed from the fact that while San Francisco has a large Asian population, she had a hard time conceiving that a Vietnamese-American family would want to settle in a conservative state like Texas. However, the question could have been construed as a guise to ascertain, and thus discriminate based upon, national origin.
7. Avoid the appearance of impropriety. While it might seem paranoid, the best approach to protect yourself and your clients is to avoid even the appearance of impropriety. That’s why a seemingly harmless question about someone’s background is a topic to avoid. When interviewing or screening a client, stay focused on questions and criteria that relate only to the position. If your client protests this approach, simply send her a copy of this article.

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.

The bill’s key provision is a proposed points-based system for awarding work-related visas. A visa applicant would be evaluated on a 100-point scale, with about 50% based on employment criteria, 25% on education, 15% on English proficiency, and 10% on family connections. Minimum qualification: 55 points.

The bill proponents claim the current system gives the most weight to families and relatives and doesn’t do enough to bring in much-needed skilled professionals. This may sound like a good idea in theory, since it would favor people with more critical skills. But on closer inspection it appears that not all is as it seems.

An analysis by the Los Angeles Times showed that the proposed system can produce some rather odd results. For instance, an unskilled, illegal alien can score 21 points with three years of agriculture experience, while a legal skilled immigrant with an MBA, MD, or graduate degree gets only 20 points. Regulation of the points system would be managed by the federal government.

What this essentially means is that bureaucrats would determine what skills are important to business and industry, rather than the employers and, of course, you. So if your company wants employees who do not pass the points test, well, tough. The message from the bill sponsors to employers is: “Trust us, we know what’s best for you.”

Other countries’ experiences with a similar approach have been far from positive. Canada implemented a similar system in 1967. Under that system, a person did not need to have a job offer but just meet the requisite number of points (67). Points are awarded for meeting criteria in categories such as education, work experience, occupation, language ability, and age. Bonus points can be earned for “adaptability.” That is, if the applicant’s spouse is highly educated, or if the person has a relative in the country. (See if you qualify to become a Canadian).

Australia and Britain have similar systems. The limitation of this approach for awarding work permits is that it doesn’t allow for people with unconventional skills or those who might be highly skilled but lacking in professional qualifications. Under the Canadian system, Bill Gates would not qualify for immigration to Canada because he lacks a degree.

I suppose he could just buy the place if he really wanted to. Of course, if Bill really wanted to be a subject of the Queen, then someone in Ottawa would find a way to bend the rules to make it happen, regardless of what the points system allows for. Much the same would likely happen here, as was done for Rupert Murdoch.

Worse yet, these systems create huge backlogs of people wanting to immigrate but without jobs waiting for them. That is, employers are not necessarily looking for the skills they possess. If the system worked in matching people’s skills with jobs, then there would be no backlog.

Under the proposed U.S. bill, and with bureaucrats running the show, it is highly unlikely that the system will keep up with skills in demand. Given Congress’ propensity for being slow to act (immigration laws change on average every 15 to 20 years), we could also be stuck with a system that was antiquated before it even started.

The new approach would also perpetuate the games that are played with the current one when it comes to getting work permits. Anyone who has applied for an H1-B visa knows that it’s basically an exercise in creative writing. The applicant, or his lawyer, needs to convince the Labor Department that he holds a unique set of qualifications. So a job description is created that ensures that no one but the applicant is qualified for it.

The agencies certifying the applications have neither the resources nor the capabilities to verify or challenge them beyond checking educational credentials. And no one ever verifies that the person receiving a work visa actually does the work their application specified they would do. As many employers know, one of the surest predictors of turnover is the date an employee receives a green card. So if the new bill becomes law, immigration lawyers will just have to find creative ways to get over the points hurdle.

The current immigration bill should be of concern to all those in the recruiting profession, especially those recruiting for advanced skills. The shortage of skilled workers will continue into the indefinite future. A solution is needed beyond what exists today, but this is not it.

The current process is far from perfect, but this bill would just make a bad situation worse.

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.

The verification division for United States Citizenship & Verification Services is also managing the Basic Pilot program, and it?s just one of a growing list of federal agencies devoting more resources to immigration policy and enforcement.?

The worker verification program saves companies the money they might otherwise have to spend checking the backgrounds of new recruits. And while participation doesn?t guarantee that an employer will never be audited by the DHS, many believe it provides ample legal cover while Congress hammers out new immigration enforcement legislation.

One thing Washington lawmakers won?t have to negotiate in coming weeks is the mandatory implementation of an employment verification program similar to Basic Pilot, because that provision was written into the bills already passed in both the House and the Senate.

Growing employer interest in the Basic Pilot program has sparked an outcry from immigrant rights groups, in part because federal officials have acknowledged errors in the system that can mistakenly label some legal workers as illegal. The debate is also raging in the blogosphere.

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.

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.