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

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

Sales Manager Anecdote: We used XYZ test and our sales productivity increased.

OK. What is your definition of productivity? What else was happening at the time that could have affected the numbers? Did you land a big customer? Did the economy improve? Did lower and higher scores predict lower and higher sales? Are you using group results or individual data? Sales dollars are only one part of the job. What about satisfaction, service, returns, cross-selling? You see, anecdotes are rhetorical. They might sound good, but seldom tell the whole story. Anecdotes and validity are not equal. Birdseed vendors, because they don’t follow professional test-validation processes, don’t know they don’t know this.

Define Performance … or Else!

Let’s continue with our sales example. Nothing is more important than a highly productive sales staff. But wait. What does that mean? Are we discussing acquiring new customers? Farming or hunting? Cross-selling? Delivering great customer service? Customer retention? Solving service problems? Favorite golf buddies? Job turnover? Learning new products?

Get the picture? I have learned over time, especially with call centers, that many performance areas even conflict with one another. Problem Solving Quality and Calls Completed are often negatively related (i.e., it generally takes more time to better resolve problems). It drives employees crazy when an organization sets mutually conflicting objectives. So which one should they test for?

Performance is a loosey-goosey catch-all term that could actually mean something entirely different to different people. In my experience, few sales managers and even fewer HR departments ever take the time to think this through. So, before you decide on a test vendor, carefully define what you want to measure. If you think “performance” is a singular thing, then you are in a heap of trouble. If someone does not know what he/she wants to control, then any solution will be like bed wetting … warm and comfy at night, but cold and miserable in the morning.

Truth or Dare!

My bathroom scale is heartless. It tells me when I am overeating. It also tells me when I am at my healthy weight. Your hiring test should do the same thing. Good scores should have the same strong causal relationship with high performance; and, bad scores should have the same strong causal relationship with low performance. This is really important. Vendors who do not follow professional test development standards don’t seem to really understand that validation is a two-edged sword. Let’s look deeper a very common, and very wrong-headed practice.

Vendor A separates people into a good group and a bad group. The good group takes the test and the vendor averages their numbers. From that day forward, every applicant is benchmarked against the good-group average. Sound’s good? Sorry. It’s a clear sign the vendor is selling fake birdseed.

Let’s start by asking how the people were group-classified. What constitutes performance? Are good schmoozers in the same group as slow learners? How about group size? Are there enough people in a group (i.e., it takes at least 15 to 25 people before you can draw a decent conclusion). Is the bad group the same size as the good group? (Groups should always be about equal-sized.) Are the differences between groups strong or subtle? (If everyone is at least good enough to stay employed, you will probably be able to see only strong differences.)

What about the test itself? Can the vendor show proof every item in the test directly affects group performance? How strong is it? Research shows that virtually all self-reported motivation, personality, and attitude test scores have weak relationships with “hard” job skills like learning ability, problem solving, and so forth. If the test factor doesn’t strongly predict job performance, the test won’t make any difference in hiring quality … it will just make your job more difficult.

One more comment about group scores. They tell you about groups — nothing about individuals. Consider the following: people in the Top Group have scores of 20, 30, 40, 50, 60, and 70 (average = 45). The Bottom Group scores are 10, 20, 30, 40, 50, and 60 (average = 35).

So the person doing this analysis figures that producers score an average of 45 — so let’s go test people and hire the ones who score 45 or more. Whoops! If we used top-group averages as our standard, we would eliminate three top producers and hire two bottom ones. Fake birdseed alert!

Separating Pros from Pretenders

Setting hiring-test standards is an all or nothing game. There are no shortcuts. In my personal experience, wrong-headed vendors are seldom intentionally deceitful. They enthusiastically believe in their fake birdseed; after all, people who make things with their own hands seldom welcome criticism. So, they rely on client anecdotes, claiming that is sufficient proof of validity. Some will even claim that the EEOC has validated their test. Sorry. This is completely wrong-headed and foolish thinking.

If they rely on vendor claims, users will never know how many good candidates they turn away, nor how many bad ones they will hire. They always pay the price for this mistake later. You see, legal challenges seldom happen in the hiring phase. They happen on the job. Challenges begin when incompetent employees challenge termination or being overlooked for promotion. Forget the short term and six-month guarantees. Bad hiring decisions start showing themselves about a year later.

So how do you identify a pretender? Anyone who is:

• Producing client testimonials (not tightly controlled studies) claiming their test is valid;
• Getting defensive when questioned;
• Claiming their test doesn’t actually predict performance, but can be helpful;
• Claiming the EEOC has approved their test;
• Setting standards based on group or job averages;
• Focused primarily on training, not professional test development;
• Giving everyone a broad-based test (i.e., not based on performance requirements) and then measuring averages;
• Giving everyone a broad-based test (i.e., not based on performance requirements) and then measuring differences;
• Believing a self-descriptive test strongly and accurately predicts job skills;
• Not able to produce a technical manual documenting what the test measures and why that factor leads to job performance;
• Not clear on the definition of what the test actually predicts;

There are others, but this is a good start. Here is a quickie birdseed question users should ask every vendor: “Was your test specifically developed to predict job performance? If so, what part?” Any answer other than “Yes” means the test probably won’t work.

Birdseed or Not Birdseed!

As you might imagine, birdseed vendors complain the loudest. That’s really shameful. Validation principles are taught in major universities throughout the western world and religiously followed by every professional test development house. Just because a vendor does not know what they are is no excuse. It reminds me of Gary Larsen’s little fat boy trying to enter the School for the Gifted and Talented by pushing hard against a door that clearly say “pull.”

Here are some believe-it-or-not examples:

V1: Vendor (who sells a self-reported personality test) … All you care is about assessment. Don’t you care about performance?

A: Hello! Assessment is anything used to evaluate a candidate and predict performance. Besides, there is abundant literature showing self-reported tests are miserable predictors of skills like problem solving ability, planning, and teamwork. You want accuracy? Start selling tests that measure hard-to-fake applicant skills.

V2: Vendor (who sells a post-WWII NAZI atrocity test). Our test is validated. See our report. Wanna be a distributor?

A: No, thank you. I am not in the market for a concentration camp commandant. Besides, a technical report filled with anecdotes from unqualified people venturing their unsupported personal opinions about your test does not meet professional test standards.

V3: Vendor (who does group-level averaging). Group averaging is just another form of validation.

A: No. It’s not. Your test has no clear performance criteria; no proof a specific factor causes performance; group data is being used to make individual conclusions; and, your groups are so small, the numbers are either nonsense or chance.

U4: User … If I use a test, I’ll never place a candidate!

A: If there was ever a statement concerning the sad state of applicant screening, this was it!

U5: User … We like the DISC/MBTI/ACL/CPI/16PF/MMPI/Caliper test so much, we decided to use it for hiring.

A: That’s interesting. As far as I know, none of these publishers claim their test predicts job performance. Some even strongly recommend against it. Perhaps, you know something the publishers do not? Think about it. Just because a test measures a difference between people, does that mean it also predicts someone’s job performance?

U6: User … We use tests to match candidate personalities to managers.

A: That might be a good idea, unless company culture never changed; managers never changed jobs; people never changed departments; or, cloned personalities never lead to group-think.

U7: User … We interview. We don’t use tests.

A: If you ask questions and make hiring decisions based on applicant answers, how is that not a test?

V8: Vendor (after learning what it takes to meet professional test requirements) … I can’t do that!

A: That said it all.

V9: Vendor … We keep adjusting top group scores until we get the maximum individuals in the group to pass. The results become our hiring standard.

A: Fine-tuning junk science yields finely-tuned junk science.

V10: Vendor … We compare every applicant against a country-wide manager/salesperson/driver/XZY job norm.

A: So, you are assuming all jobs/companies/industries with the same title are alike; everyone in the group norm performs just like your people are expected to perform; every individual in the group norm matches the group average; jobholder answers are identical to applicant answers; applicants never try to make themselves look good on tests; and, every factor in the norm affects performance? Sure.

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

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

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

(Note that a charge may contain multiple discrimination claims. The percentages represent the charges that include a specific discrimination claim.)

Retaliation claims may well continue to climb this fiscal year. Announcing a lawsuit earlier this month, an EEOC regional attorney in the New York office said, “We will pursue vigorously retaliation claims against employers whose managers would rather not comply with court orders and fire individuals who object to threats based on their religion and bias based on race.”

Mintz Levin attorney Martha Zackin, discussing the retaliation charge statistics, bluntly declared, “Retaliation claims are here to stay.” “ Recent developments lead us to conclude that this trend will continue, in 2012 and beyond,” she said, citing Department of Labor retaliation guidance under the Fair Labor Standards and Family and Medical Leave acts.

After retaliation and race, sex, disability, and age charges ranked third, fourth, and fifth respectively. However, while charges of sex and race discrimination declined, age and disability claims increased over 2010.

The EEOC said that its enforcement of the Americans with Disabilities Act “produced the highest increase in monetary relief among all of the statutes: the administrative relief obtained for disability discrimination charges increased by almost 35.9 percent to $103.4 million compared to $76.1 million in the previous fiscal year. Back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression, anxiety disorder and diabetes.”

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

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

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

eQuest? Yes, the job-posting distribution service, is sponsoring the first 26 weekly installments of the show’s new season. Part inspirational and part motivational, the show is intended to help the men and women in uniform look ahead to their own success when their service to the country is done.

If eQuest seems like an odd match, you’re right, and you have company. Founder and CEO John Malone had about the same reaction when Fascination Entertainment first proposed the partnership. The production company, though, did its homework. Having produced videos for eQuest in the past, Fascination knew that veteran outreach was a requirement for any company doing business with the government.

“They put together this show to inspire these guys,” said Malone, using the gender-neutral meaning of guys. “It’s all about showing success is obtainable and it’s going out to something like 180 countries and millions of people are listening  to the (Armed Forces Network).”

It didn’t take Malone long to sign-on as the show’s sponsor.

“I was really impressed, and we thought it would be a good way to reach military people and we said (internally) ‘Wouldn’t this also be fun to have as part of our package,’” says Malone, explaining that American Dream is “part of our OFCCP outreach.”

The Office of Contract Compliance Programs enforces federal contract requirements, specifically those parts relating to affirmative action and equal employment opportunity. On its website, the Department of Labor lists some ways federal contractors can meet the outreach requirements of the Jobs for Veterans Act. Sponsoring a program on military radio is above and beyond; obviously not something the government thought of.

“It’s kind of a different way of doing veteran outreach … not something I would have thought of,” Malone agrees. But when he met with the producers and listened to the first shows, “I walked out of there all pumped up.”

“Whether it translates into jobs or veterans getting hired, I don’t know. I hope so,” he says. “The main thing,” he adds, “is that it’s really about pumping them up; getting them excited about what they can do after the military.”

Four eQuest customers will get sponsorship mentions during the 25-minute broadcasts. The company is including their message without charge. But don’t get the idea these are commercials; they are much more like the sponsorship messages on NPR. It’s branding; not an invitation to apply, although there’s no reason a web address can’t be mentioned, as the Sutter Health message does. (The other three co-sponsors are American Airlines, American Water, and FINRA.)

Malone says since hearing about the program, other eQuest customers have said they want to participate. Interested employers can contact eQuest directly.

In the coming weeks American Dream will air interviews with John Tesh, David Oreck, and Mario Andretti among others who may not be as widely known, but whose stories are no less inspiring.

“It’s not about the money they made,” adds Malone. “It’s about following their dream. That’s the inspirational message.”

That’s precisely the message that Thom Beers delivers. “First and foremost,” he says in closing, “make sure it’s your dream … Then do everything possible to make it happen. Don’t give up… Don’t get discouraged, man. Just keep plugging away.”

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

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

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

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

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

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

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

Workers debilitated by superstitions may have a genuine disability, which might well be covered by the Americans With Disabilities Act, or, potentially, Title VII, if there is some sincere religious basis to fear of the day.

For instance, an evangelical Christian was suspended and then fired by Berry Plastics Corp. stemming from his refusal to wear a sticker promoting 666 accident-free days. (If the number means nothing to you, you either aren’t a Christian or don’t watch horror films.) The U.S. Equal Employment Opportunity Commssion issued a right-to-sue letter, and now Berry is being sued for religious discrimination.

However, when a Pentecostal Christian objected to Halloween decorations in the office as a form of discrimination, a judge tossed the case ruling: “Halloween lost its religious and superstitious overtones long ago.  It has become instead a commercial holiday enjoyed  by communities in its many forms of entertainment.”

Before penalizing an employee for a Friday the 13th action, consider whether it might be some form of religious belief. The EEOC compliance manual says that merely because a practice may “seem illogical or unreasonable to others” or even if it is unique to just that one person, it might still be a legitimate religious practice requiring accommodation.

More commonly, a severe, debilitating case of friggatriskaidekaphobia may stem from some form of mental or emotional issue. While the term doesn’t appear in the psychiatric manual of mental health diagnoses (DSM-IV), it would probably be considered an anxiety disorder, if it was sufficiently severe. As a superstition, it would probably be ignored.

That’s a determination for a psychiatrist or a psychologist. HR’s role is to determine whether the impariment rises to the level of a disability, and if it does, then what accommodation is reasonable to make for such individuals. The EEOC itself advises “Not all conditions listed in the DSM-IV, however, are disabilities, or even impairments, for purposes of the ADA.” However, if it is, then says the EEOC, “To rise to the level of a “disability,” an impairment must “substantially limit” one or more major life activities of the individual.”

That might be the case if the friggatriskaidekaphobia was part of a ritualized practice of superstitions, such as might be exhibited in obsessive-compulsive disorders, which the DSM-IV classifies under anxiety disorders.

Tony Shalhoub became an OCD poster boy for his portrayal of detective Adrian Monk. The character had a germ phobia, worries about symmetry and safety, is superstitious, and has a few other issues. Despite his symptoms, Monk managed to solve seemingly impossible cases, proving that with some accommodations (a nearly full-time assistant) people can be productive.

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

Federal contractors and subcontractors would have to try to have 7 percent of their workforces be people with disabilities, among other requirements. It’s not a hard mandate, but a goal to work toward for various job groups (in other words, as the proposal spells out, a company shouldn’t mask low levels of disabled employment in certain job functions by building up a high number in low-paid jobs). Contractors would have to take certain recruiting, training, and other steps to work toward the goal, “similar to those that have long been required to promote workplace equality for women and minorities,” says the U.S. Labor Department.

Page 26 describes a new requirement about surveying your employees, “providing an opportunity for each employee who is, or subsequently becomes, an individual with a disability to voluntarily self-identify as such in an anonymous manner, thereby allowing those who have subsequently become disabled or who did not wish to self-identify during the hiring process to be counted.”

There’s much more. On page 36 it says the contractor should “promptly list all of its employment opportunities, with limited exceptions, with the nearest Employment One-Stop Career Center. It also requires the contractor to engage in a minimum of three additional outreach and recruitment efforts …”

And around pages 38 and 39, it says contractors would need to “review the outreach and recruitment efforts it has undertaken over the previous 12 months and evaluate their effectiveness in identifying and recruiting qualified individuals with disabilities, and document its review.”

You’d have to look at how many employee referrals and applicants were people with disabilities, examine if your efforts are not working, investigate why, and implement changes.

There are provisions about recruitment training; for example, related to making sure you’re training people in being sensitive to applicants and recruits.

Two Months for Your Two Cents 

There’s much more in the proposed rules, which we’re sure many labor and management lobbyists will be poring over when they awaken. The process for commenting on the regulations, before a final rule is made, is spelled out briefly on page 2. Comments must be received by February 7.

Sadly, the unemployment rate for people with disabilities is 13 percent — a problem I have been interested in since being involved in lobbying in favor of a disability-related tax credit called the WOTC, championed by New York Democrat Charlie Rangel, in the 1990s.

In the meantime, for more on the topic of disabilities in the workplace, the Job Accommodation Network has long been a great source of information.

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

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

Informal discussion letters aren’t policy. That’s up to the Commission members. However, employment lawyers see the letter as signaling the possibility that the EEOC may be looking to step up its enforcement of other provisions.

Says Proskauer Rose attorney Nigel F. Telman, “I could see them potentially … saying at some point” that a high school diploma requirement “may have a disparate impact on a particular class of people.”

For instance, 87.1 percent of the U.S. population older than 24 has a high school degree. However, only 62.9 percent of Hispanics do. So requiring a degree does have a disparate impact nationally. That alone isn’t illegal. But it does mean you’ll have to justify the requirement as both job related and consistent with business necessity.

If it’s the ADA that’s involved, you’d also have to also establish that with or without an accommodation the disabled person is unable to do the job.

The EEOC letter spells out the process:

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

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

Cautions a blog post from the employment firm of Baker, Donelson, Bearman, Caldwell & Berkowitz:

As a practical matter, employers should now be prepared for the EEOC to second guess whether their educational requirements are job related and consistent with what the EEOC believes to be a business necessity.

 

In other words, Dodd-Frank is mandating that more women and minorities must occupy lucrative Wall Street jobs that heretofore have been dominated by white men who, in gender and ethnicity, resemble Gordon Gekko, the anti-hero of the movie Wall Street and of its sequel.The Dodd-Frank provision is buried within some 850 pages of legislative text designed to strengthen the financial sector, promote economic recovery and job growth, protect consumers, and permanently end taxpayer bailouts of private institutions. Section 342 of Dodd-Frank embeds 20 Offices of Minority and Women Inclusion at virtually every major financial regulatory agency of the federal government: Treasury, the Securities and Exchange Commission, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the 12 Federal Reserve banks, and the newly created Consumer Financial Protection Bureau.

The offices are designed to serve as watchdogs, monitoring the diversity of the agencies and the government contractors and subcontractors with which they do business. The list includes “financial institutions, investment banking firms, mortgage banking firms, asset management firms, brokers, dealers, financial services entities, underwriters, accountants, investment consultants and providers of legal services.”Wall Street’s issues with gender diversity date back to the now infamous “Boom-Boom Room,” Smith Barney’s basement party room where lap dances took place in the 1990s. Since then, females across the industry have shared similar tales about how they were sexually harassed with vulgar talk; excluded from business lunches, meetings and golf outings; and how their careers were hindered or damaged.

While consciousness has been raised and while the numbers of female and minority executives have improved, the vast majority of Wall Street firms lack diversity in the upper ranks. And that disparity could be a big problem in the eyes of Dodd-Frank regulators. Wall Street does billions of dollars in business with the federal government for services that include debt issuances, sales of government assets, as well as more general advisory services.

That business now may hinge on a Wall Street firm’s ability to correct racial and gender imbalances. According to Dodd-Frank language, if a federal agency’s compliance director concludes that a contractor has not made “a good faith effort to include minorities and women in its work force,” the agency head is authorized to cancel the contract. In other words, contracts worth billions are at stake — a dollar amount designed to be so significant even the wealthiest 1% would take notice.How can you determine whether Dodd-Frank diversity mandate applies to your firm? Chances are Dodd-Frank does apply if the following describes your current firm:

• Your company is an investment banking firm, mortgage banking firm, asset management firm, broker, dealer, financial services entity, underwriting, accounting, investment consulting, or law firm.
• Your company does business with the federal government’s financial agencies: Treasury, the Securities and Exchange Commission, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the 12 Federal Reserve banks, and the newly created Consumer Financial Protection Bureau.

What should you do if you determine that Dodd-Frank diversity mandate applies to your firm? Your company must demonstrate that it has made a “good faith” effort to employ women and minorities. Clearly, “good faith” is subject to regulatory interpretation. However, Wall Street firms that demonstrate incremental improvement year over year in the diversity of their workforce may be better positioned for compliance than those that do not.

Employers also need to make sure that rounds of recent layoffs have not had a disparate impact on protected classes: workforce reductions and reorganizations have a way of eroding diversity ratios. Still, steady improvement may not be enough if regulators determine an organization could and should be doing more. To prepare for impending diversity regulations, potential next steps include the following:

• Define the baseline. Quantify the percentage of qualified women and minorities in the labor markets from which you recruit.
• Quantify the percentage of women and minorities in your current workforce, broken out by level, function, and geography.
• Compare your company’s diversity to the diversity of the labor market and identify opportunities for improvement.
• Focus the diversity talent pool and pipeline initiatives on the levels, functions, and geographies where they’re needed the most.
• Identify, map, and cultivate relationships of diverse talent at all of your favorite target companies.

Because Dodd-Frank diversity regulations are still being written, few Wall Street employers are fully conscious of its impending diversity mandate. One head of diversity for a global investment bank told me he fears that by the time those regulations are announced next year, there simply will not be enough time for Wall Street firms to come into compliance. Consequently, my colleague maintains that the time to act is now.

Dodd-Frank is the law. Wall Street companies can either ignore its diversity mandate at their peril or they can invite a growing occupation of corner offices and trading desks by female and minority employees. Interestingly, the latter choice also stands to make the workforce more economically diverse, which, in turn, may put Wall Street back in touch with Main Street. In fact, what may be most intriguing about the Dodd-Frank is the transformative potential of its diversity mandate. It holds the promise of reforming Wall Street from within.

And the livin’ is easy

Reqs are slowin’

No hirin’s nigh.

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

An HR case from Oz.

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

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

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

Now let’s turn to vacations.

How do you know when you’re on vacation?

Before the devil foisted the Internet and cell phones upon us, that was easy. You got up after the sun, dressed however you wanted, didn’t go into the office, and did pretty much whatever you wanted.

Nowadays, we need a court and lawyers to tell us. Conveniently, they have.

A vacation, explained a California Court of Appeals a couple weeks ago, is “paid time off that accrues in proportion to the length of the employee’s service, is not conditioned upon the occurrence of any event or condition, and usually does not impose conditions upon the employee’s use of the time away from work.”

What prompted the definition (which, I must point out, doesn’t explain what all those people at beach resorts are doing answering work emails), what got the matter into court, was a disagreement over a sabbatical.

Advanced Micro Devices offered a paid, two-month sabbatical (oh, those good old days) to workers with seven or more years of time in. When Eric Paton quit before taking his sabbatical, AMD claimed he forfeited it. Not so, said Paton. It was accrued over my seven years and, just like vacation time, you owe me, Paton said.

The lower court ruled against him, but the appeals court reversed, sending the matter back to have someone else, maybe a jury, decide when a sabbatical is a vacation and when it’s not.

It did offer some guidance in deciding the “thornier problem” of unconditional sabbaticals. Besides adopting the California Department of Labor Standards and Enforcement guidelines, it added one:  An expectation that the employee will return to work after the sabbatical.

Still with me? Good, because now here’s a suggestion about what to do with all that sabbatical time you have.

Find a job at sea.

There are hundreds, hundreds! of boats looking for crews. They’re on FindACrew.net. If there’s a more romantic, adventurous job board for the wanderer in us, I don’t know it.

The paying jobs want you to have experience. Others don’t care and will take you along for whatever help you can provide.

There’s a Polish sailboat down in Brazil planning a leisurely cruise around South America looking for people willing to share the work for a ride. How about sailing the Aegean aboard a 51′ American ketch?

Play your cards right, and you might end up sailing away just in time to skip the EEO-1.

Help catch pirates.

Crewing a boat around the world not enough? Then I leave you with his opportunity: The European Union is looking for a Pirate Cultural Advisor. It’s not enough that you know how to talk like a pirate. The EU really wants ex-military with a security clearance. Points, presumably, if you sailed the Somali coast and made it through.

Enjoy the rest of your summer.

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

She complained to the National Labor Relations Board.

What happened?

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

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

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

In the 40-page survey, the Chamber said that the cases pursued by the board vary in the nature of the charges, which include issues of concerted activity, protected activity, failure to bargain, work time, and so forth.

However, the report says:

The issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.

That’s more than a little surprising considering an informal poll by the global law firm Proskauer & Rose found 45 percent of the companies it surveyed had no social networking policy at all. In 2009, CareerXroads asked its blue-chip clients about their social media policies and came up with an almost identical 44.4 percent that had no policy.

Nonetheless, the Chamber’s survey shows the NLRB cases and memoranda addressing social media issues pay closest attention to policies restricting “discussion of wages, corrective actions and discharge of co-workers, employment investigations, and disparagement of the company or its management.”

Adds the Chamber, “The context in which the policy was adopted and even the issue of whether a rule or policy has been actually adopted are also important in these cases.”

In a blog post about the Chamber survey, Manpower’s Chief Legal Officer Mike Toth wrote that “Employers are getting themselves in trouble in two basic ways: (1) overbroad policies restricting employee SM (social media) use and (2) employee discipline based on SM usage.”

Where company policies prohibit all disparaging comments (as in the AMR case) or which prohibit all discussions of wages, working conditions, or discipline, or similarly broad policies, the NLRB is taking action. And it’s not dependent on union activity. Indeed, the Chamber specifically says, “a significant percentage of cases in our survey involved non-union employers with no union activity.”

However, as the Chamber survey notes, the issues have only begun to arise and the rules are still emerging. But in three matters in the last few weeks, the NLRB has provided some guidance on social media postings where it won’t interfere with the discipline.

Baker & Hostetler employment attorney Leah Williams suggests two of these situations are when:

1. The employee’s work complaints on Facebook were made only to family or friends; or

2.  The employee’s complaints expressed only an individual gripe with the employer, rather than concerns expressed by employees collectively.

The “family and friends” situation came out of two cases in which employees were terminated for complaining on Facebook about customers and the people in their care. Only family and friends saw the postings, though eventually the employers found out. Because no co-workers saw the posts, and they weren’t discussed with other workers, the NLRB found they didn’t constitute collective action or concerns. Nor, said the NLRB in advice memoranda, did they relate to the terms and conditions of work.

The second situation was more problematic, since the terminated employee did address working conditions in his Facebook posting, and it was not only seen by his co-workers, but they added comments of their own.

However, the NLRB characterized it as was venting. The “Facebook postings were an expression of an individual gripe,” said the advice memorandum from the NLRB’s General Counsel. Since there was “no language suggesting the Charging Party sought to initiate or induce coworkers to engage in group action,” no collective action was involved.

Williams concludes her analysis of the three cases saying:

…it appears that social media communications that are solely on the employee’s behalf (e.g., posts that are not communicated to coworkers or management) or communications that are individual in subject matter (e.g., posts that may be communicated to coworkers but concern only an individual gripe) are not concerted activities and, therefore, are not protected under the NLRA.

What are the takeaways? First of all, review your policies regarding employee speech. Be sure that if your policy includes language prohibiting certain types of blogging and social media posting, it makes clear it doesn’t apply to actions protected by the NLRA.

When disciplining an employee for what they posted online, examine the extent to which the post deals with the terms and conditions of employment, and who the audience is. Obviously, if it seeks to rally coworkers to action, it’s almost certain to be protected concerted action. Even absent a specific call to action, a discussion of such issues with coworkers will be protected.

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

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

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

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

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

The labor specialist group at Weil, Gotshal & Manges concluded a detailed account of February’s EEOC hearing on unemployment discrimination with this:

Given the EEOC’s attention on blanket prohibitions against hiring unemployed applicants, employers run the risk of raising the EEOC’s interest when imposing these types of bans, which could culminate in a lawsuit brought by the EEOC or by individual job applicants denied employment because of such a prohibition. Even if the EEOC or a claimant would not ultimately prevail, given the cost and distraction associated with defending against such claims, it would be prudent for employers to investigate alternative ways of achieving their goals, if practical, rather than relying solely on employment status as means of evaluating job candidates.

Irrespective of the EEOC threat, there’s a groundswell of support to “do something” about the nation’s job situation and its 14 million unemployed and another 11.3 million underemployed and discouraged workers.

New Jersey’s law had the support of the state’s Republican governor, Chris Christie, who’s often mentioned as a possible presidential candidate. New Jersey neighbor, New York, and Michigan have taken up similar legislation.

At the federal level there are two bills dealing with the subject. The more moderate, introduced last month by Connecticut Democrat Rosa DeLauro, makes it unlawful to publish a job posting that contains discriminatory language. It also prohibits employers from refusing to consider or hire an individual simply because they are unemployed.

Enforcement is up to the aggrieved individual in a civil action or by the Department of Labor.

The second bill adds the unemployed as a protected class to Title VII. This would make the EEOC the enforcement arm, and subject employers to all the reporting and compliance requirements.

The likelihood of either federal bill passing is probably not high. But that doesn’t mean it’s impossible, particularly for the DeLauro bill. With elections coming up next year and unemployment showing no sign of abating, both the White House and Congress may grasp at anything that suggests help.

A poll commissioned by the National Employment Law Project found 90 percent of respondents agreeing that discriminating against the unemployed is unfair. Some 63 percent favor the kind of Congressional action embodied in the DeLauro bill.

The poll got widespread attention when The New York Times wrote about the issue of unemployment discrimination.

The article notes that “there are legitimate reasons that many long-term unemployed workers may not be desirable job candidates.” These range from using employment status as a screening tool, to concerns with atrophied skills, and recruiter concerns that workers laid off early in the recession may simply have not been good performers.

Last year, I referenced other reasons for excluding the unemployed, including the usual bias to hire passive candidates.

Popular sentiment, however, is that excluding the unemployed from consideration isn’t right. In a matter of a weekend, USAction collected over 25,000 signatures on a petition calling on job boards to refuse ads that include discriminatory language against the unemployed.

Three of the largest job boards — CareerBuilder, Dice, and Monster — say they discourage customers from including such language in job postings.

On the same day the Times’ story appeared, Monster used its blog for the second time this year to say, “We at Monster strongly oppose this practice and advise our clients on the risks of discriminating against any individual.”

Both CareerBuilder and Dice said they have policies against discriminatory language in job ads. Both monitor ads for compliance with relevant law, advising customers when one comes across and removing it if the client doesn’t.

Dice’s SVP, Tom Silver, pointed out that “Today, there are talented professionals who may happen to be unemployed largely due to circumstances beyond their control. Companies should seek the best talent that has the right capabilities and cultural fit. Limiting a company’s chance to find successful colleagues — only puts the employer at a disadvantage.”

Peter Weddle, executive director of the International Association of Employment Web Sites, the job board business group, said it “strongly opposes any form of discrimination in hiring, to include discrimination against those who are unemployed.”

While USAction did not contact the IAEWS before launching its petition, Weddle said the matter is really one for the government.

“Until a Federal law is passed,” he said in an email, “it’s unclear what if anything we should or should not be doing. In general, we don’t believe it is a job board’s responsibility or role to ensure employer compliance with employment law. That’s the federal government’s job.”

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

(If the podcast doesn’t show below, try refreshing your page.)

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

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

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

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

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

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

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

1. Weigh carefully the value of the information gleaned from social media, since it may be inaccurate, dated, or even the work of someone else;
2. Be mindful of the data privacy requirements of your jurisdiction. Some locales — Hong Kong, for instance — require the filing of a written Personal Information Collection Statement before monitoring can be done;
3. Avoid relying on information that creates a risk of discrimination. “It is possible,” says the firm, “to envisage situations where someone is treated less favorably by reason of a protected characteristic, or a condition is imposed which has disparate impact on people of a particular class.”

U.S. companies should pay particular attention to that latter point. While the U.S. has nothing even remotely approaching the rules in Europe and elsewhere, the National Labor Relations Board is taking a close look at discipline meted out by employers over social media use.

The Workplace Privacy, Data Management & Security Report published by the Jackson Lewis firm, reported NLRB Acting General Counsel Lafe E. Solomon telling a labor conference last month that every one of the board’s 52 regional offices has at least one pending case involving social media issues in some fashion.

Two of the most recent complaints against companies for terminating employees over their Facebook postings were filed in May by the Buffalo and Chicago offices.

In Buffalo, five workers at a non-profit were terminated when they posted complaints about working conditions. The Facebook postings amounted to “protected concerted activity,” said the NLRB, “because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels.”

More curious is the Chicago case, which arose when a BMW salesman complained that his dealership served hot dogs and water during a promotional event. That, too, the NLRB considered protected activity, reasoning that the posting reflected the feelings of other sales staff about the impact on their commissions.

In Canada, the British Columbia Labour Relations Board seems more employer generous. Last fall it upheld the firing of two workers who posted highly offensive comments to Facebook during a union certification push.  The board said it didn’t matter that the employees did their posting during their off hours and away from the work site.

As Proskauer attorneys wrote, in commenting on the Canadian case and another involving a fired pub worker in Britain, “it would be prudent for multinational employers to review their policies on the use of social media sites (or to put policies in place if they do not yet have any).”

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

The background of the case is here. Briefly though, what happened is Halogen created a bogus company posing as a potential talent management software buyer. An Anna Rodrgiuez, the supposed HR lead of the b0gus company, had multiple conversations with SuccessFactors, eliciting what the company said was proprietary information about product capability and pricing.

Anna, however, not only scammed SuccessFactors, but also wandered the aisles of last fall’s HR Tech show, chatting up other vendors, including Sonar 6. (Unlike SuccessFactors, which evidently failed to do much in the way of qualifying the bogus firm, Sonar 6 became suspicious early on.)

SuccessFactors filed the suit in December. Not long after, Halogen agreed to a restraining order prohibiting it from disclosing or using any of the information. Still later, as its hometown newspaper the Ottawa Citizen reported, it sought to dismiss the whole thing, saying that even if it had done everything SuccessFactors claimed, it didn’t break any laws, contracts, or agreements.

With last week’s settlement, Halogen now is on the record, in court and in the court of public opinion, as admitting ethical violations. Says the settlement announcement:

Halogen acknowledges that it engaged in false pretexting. Specifically, Halogen manufactured a phony prospective customer, “The Magnus Group,” to inappropriately obtain SuccessFactors’ business information to learn about SuccessFactors’ services and product features, product demonstrations, pricing, and sales processes.

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

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

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

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

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

For exempt workers, it’s pretty much black and white. Employment lawyers agree that for those salaried people, after-hours contacts just go with the job.

Anthony Oncidi

“It’s not a wage and hour issue” if the employee is exempt, says Anthony Oncidi, head of the California Labor & Employment Law Group at Proskauer Rose in Los Angeles. “They do the work or they can choose to leave.”

For non-exempt workers though, “it’s very much an issue we are beginning to see percolate through the courts.”

The U.S. Fair Labor Standards Act and state labor rules require employers to pay non-exempt workers for after-hours work that goes beyond minor, almost negligible amounts. Responding to a supervisor’s call about where a certain file might be, or if a bill was paid might be considered de minimus and not compensable if the time involved was trivial. Historically, such time slices weren’t easily measured and were too small to be worth the effort. The rule of thumb was less than 10 minutes.

Now, though, digital devices easily record and track messages and online time. As Oncidi notes, “it is no longer a swearing contest.” And companies that previously issued BlackBerries to only certain employees now are distributing them widely.

In Chicago, a police sergeant brought a class action suit for overtime pay because he and others were required to check and respond to messages on their department issued devices while off duty. The case is awaiting trial. A similar sort of case was brought by an ATT worker in California. The case was dismissed last year.

It will only be a matter of time before one of the cases reaches an appeals court, which will have to wrestle with the de minimus issue.

Todd Fredrickson

Attorney Todd Fredrickson, managing partner in the Denver office of labor firm Fisher & Phillips, says his rule of thumb for duration is five minutes. But things get fuzzy in situations where, say, there are multiple emails each of which may entail only a few moments.

What he’s telling his employer clients is “if you don’t want to pay for it, don’t let it happen.”

“This is a hot one for collective action,” he cautions.

Under the FLSA a successful plaintiff collects the back overtime, plus “liquidated damages” equal to the amount of back pay, and the employer pays attorney fees. And the FSLA provides for class actions, but the employees must opt-in. However, that’s not a major hurdle, so employers shouldn’t take much comfort in that.

What they should do, says Oncidi, is to reexamine who gets electronic devices, and make clear what the overtime policy is — to the rank and file as well as to managers.

“Don’t just let these things go on,” he says. Companies need to be “having a specific consciousness about these things.” Even unauthorized overtime has to be paid if the company “permits or suffers the employee to work. That’s what the language says,” explains Oncidi. Even if the policy says no overtime unless authorized, if the circumstances implicitly mean work is to be done but no express authorization is included, it has to be paid.

His example: An executive on an overseas trip who emails his non-exempt assistant who is off the clock to rebook a flight and rearrange the itinerary has implicitly authorized the overtime.

While exempt workers have no legal rights to a 40-hour work week, it doesn’t mean there aren’t consequences for an employer.

In California, even exempt employees are entitled to a real vacation. Text, call, or email an exempt vacationing employee and if they do work, the law forbids you from counting it as a vacation day.

Even so, Right Management’s Morrow points out that employers shouldn’t expect everyone to be “on” 24/7. “If this is everyday, you can’t sustain it,” she says. Tired workers lose focus and productivity is hurt. Turnover goes up and the company employment brand is hurt.

“The 24/7 workplace is here to stay. But workers need a break. They need downtime to decompress.”

Workers regularly swamped by after-hours emails, texts, or calls should raise the issue with the boss. Rather than complain, she suggests inquiring, counseling employees to, “Talk to them about their expectations about the emails. What do they expect in the way of a response.”

Some bosses will just fire off an idea, a project, a reminder as they think of it and not expect an immediate response.

Morrow has one other suggestion: take an electronics-free weekend. Let everyone know that you’ll be unavailable all weekend.

And hope that unlike my boss, yours will understand.

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

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

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

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

The EEOC long ago declared its policy against mandatory arbitration agreements in employment.It took the position in the wake of a U.S. Supreme Court decision in 1991 enforcing a mandatory arbitration requirement in an age discrimination case.

Now, a month before NLRB Judge Aleman issued his ruling, the Supreme Court overturned lower courts and ruled that a cell phone contract barring class actions and requiring arbitration or individual actions only was enforceable. The 5-4 ruling in AT&T Mobility v. Concepcion held that ATT could enforce a no-class-action/arbitration-only provision in its cell phone contracts.

While that case had nothing to do with employment, lawyers with global law firm SNR Denton suggest that for employers, it “could be a gift from on high.”

“It now appears,” write the authors of the analysis, “that an employer can compel its employees to arbitrate all employment claims pursuant to the terms of a mandatory arbitration agreement that expressly prohibits class-wide arbitration.”

However, the administrative law judge’s ruling in Supply Technologies can be read to say “not quite.” Aleman’s decision was handed down May 31, weeks after the Supreme Court’s cellphone arbitration decision. And in his decision, among other things, he effectively ruled that a mandatory arbitration agreement that essentially gutted the value of complaining to government agencies was not enforceable.

Here’s the background:

Supply Technologies’ grievance policy, called Total Solution Management, was introduced last October, three days after a unionizing vote failed 22-22. Four sets of documents, all in English, explaining the program were distributed to workers with the requirement that they be signed and returned.

When 20 workers at the company’s Minnesota facility, most of them Hmong with limited English proficiency, objected to signing the documents because they didn’t understand them, they were fired on the spot.

The Teamsters, which lost the union vote, filed a complaint with the NLRB, which accepted the case and filed against Supply Technologies.

Aleman, in his decision, found the documents to contain contradictory language, writing that “the policy is, at best, ambiguous and confusing, and thus unlawful.” He also noted that despite its specific avowal of the right of  employees to file complaints or charges with government agencies, the TSM policy required them to waive their right to any remedy they might be able to get.

This waiver requirement, in my view, renders meaningless whatever right employees purportedly have under the TSM to file a charge with the Board, and would, I find, have a chilling effect on an employee’s willingness to exercise their Section 7 right to do so.

The company, a subsidiary of Park-Ohio, can appeal the ruling to the NLR Board in Washington. Company HR vice president Betty Boris was out of the office and couldn’t be reached.

In a review of the decision, the employment and labor firm Barnes & Thornburg said the case “provides an illustrative example of the limits of a mandatory arbitration policy in the employment context.” The firm also cautioned about the “critical role that drafting and rollout can play in implementing such a policy.”

(The testimony in the case said a supervisor simply had the employees collect the documents. No meetings were held and the supervisor allegedly told employees he did not know what the packets contained.)

The Barnes & Thornburg discussion of the Supply Technologies case notes the ATT decision, and says the NLRB case “at least reminds employers of the limits of arbitration policies in the employment context.”

Next up from the Supreme Court is a decision on an appeal by Wal-Mart to a class action sex discrimination suit. The company is appealing the certification of a 1.5-million member (and growing) class, said to be the largest class action case ever. The decision is due later this month and legal experts expect the lower court to be reversed and class action status denied.

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

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

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

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

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

The paperwork proposals apply to employers with contracts of $100,000 or more and 50 employees. They expand the specific information the OFCCP wants in a compliance audit from 11 to 13 different items and also specifies how the data is to be presented. For instance, application, hire, promotion, and termination data will have to be organized by racial/ethnic group, and not simply by the broader minority/non-minority designation.

With the initial response to the audit notice, the employer must submit all company personnel documents. This would include such things as employee manuals and leave policies. Promotions and terminations (layoffs) will have to include the actual candidate pools for each.

McGuireWoods, a 900-attorney firm based in Richmond, Virginia, calls the proposed changes to the paperwork provisioning proposal “significant and problematic.” Its analysis includes links to the relevant documents from the OFCCP, which detail the specifics.

The veterans proposal is more far-reaching in that it requires contractors to more aggressively pursue the hiring of ex-military workers. Some of the provisions apply to most federal contractors, while some of the paperwork retention requirements have thresholds of 150 employees and $150,000.

Charu Avasthy, a consultant with Berkshire Associates, says the proposals will require contractors to affirmatively pursue the recruitment of veterans, and to have the records to demonstrate their efforts.

“It is an additional burden,” she said, but it’s not a whole new set of regulations. “I see these more as the means of getting the contractor community to increase the outreach and recruitment of the veterans.”

She is one of the authors of a Berkshire Associates whitepaper on the subject: “Effective Veteran Outreach — Understanding the Compliance Requirements.”

Besides broadening some of the recordkeeping, the proposal does require contractors to set annual hiring goals — benchmarks — that are derived from a consideration of such things as the percentage of veterans in a state’s labor force, the number of vets participating in the employment service delivery system in the contractor’s home state, and the contractor’s own assessment of the effectiveness of their recruitment and outreach.

To improve veteran hiring, one of the changes requires contractors to commit to “linkage agreements” with recruitment and/or training organizations, including with veterans’ employment representatives at local employment service offices.

The linkage agreements must be part of an expanded outreach and recruitment effort; the proposal requires a minimum of three specific types of efforts. In addition, contractors must provide notice of job vacancies for most types of positions to state employment services and in the format the state requires.

Candidates, who previously were asked to self-identify as veterans after receiving an offer, now must be invited to self-identify upfront. The proposal also more specifically defines which veterans are covered by the provisions: those recently separated; service medal veterans; disabled vets; and, active duty wartime or campaign veterans.

Berkshire’s Avasthy suggests contractors review the proposals (which are extensive and in legalese) and submit comments before the June 27th deadline. The OFCCP, she says, may modify some of the proposals or even eliminate some provisions after reviewing the comments. In any case, Avasthy suspects any changes that are made won’t go into effect until mid-2012 at the earliest.

The comment period for the expansion of the data and paperwork provisioning requirements for contractors being audited closes July 11. Information on how to submit comments is here.

For the provisions regarding veterans, the comment period closes June 27. The OFCCP details how to submit those comments here.

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

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

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

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

“It’s all a function of supply and demand,” he points out. A security cleared, experienced Java developer can expect to hear from a recruiter regardless of when they apply. A customer service rep needs to get the application in on day one.

“Getting to the front of the line is important if it’s a long line,” adds Forman.

The study, however, has some potential OFCCP implications for recruiters. If the majority of your hires are coming from the applications submitted within the first three weeks, what, then, does that say of your candidate pool?

Online job postings can linger for weeks or even months. And many corporate careersites pull their listings from an ATS, which keeps a listing alive until the req is actually closed. Under OFCCP regs, a job seeker becomes an applicant by submitting “an expression of interest,” having the necessary qualifications, being “considered,” and not withdrawing.

Forman’s study implies that within a week or two of a job being posted, the future hire’s resume is likely already in the in-basket. Job seekers applying after the third week have a much lower likelihood of getting the job. With so many ATS’s not only searching for the basic qualifications, but also ranking candidates — an assessment, of sorts — the paperwork compliance provisions come into play, even if the short-list interviews have already begun.

Since OFCCP regs apply only to federal contractors and subcontractors, this may not be a major issue. But it does suggest that including a time limit on applications might be useful. Placing limits is an approved practice. The OFCCP FAQs say: “if there are a large number of expressions of interest, the contractor may limit the number of individuals it considers by using random sampling, absolute numerical ceilings, or other data management techniques, provided the sampling procedure is appropriate.”

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

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

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

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

Dwyer and Mark Carlson, president of the Massachusetts Association of Personnel Services, explain that the organizations pushing HB 1393 claim it’s needed to protect day laborers. With many of them immigrants and undocumented, they have sometimes been the victims of unscrupulous employers who pick them at street corners with the promise of a day’s work, but cheat them out of pay.

However, as Dwyer points out, “that’s not the staffing model.” Staffing firms typically vet their candidates in advance, verifying their qualifications before referring them out. While bad apples exist in every barrel, by focusing on staffing firms, Dwyer says the bill “puts the onus on an industry in which the bad operators are outside the industry.”

Indeed, the two examples cited by the proponents involved failure to pay taxes and make workers’ comp payments. Says MassCosh, one of the labor groups pushing the bill, “non-professional temp agencies are creating an underground economy that undercuts hard-working employers, results in the exploitation of workers and steals desperately needed tax revenue from the state’s coffers.”

Though the bill only affects firms doing business in Massachusetts, Dwyer says it has the potential to become law elsewhere. “California could use it as a model,” he says. “It certainly could spread and that’s one of the concerns we have.”

Even without that risk, should the bill become law as written,  it could have repercussions for out-of state firms who place workers in Massachusetts. An Illinois staffing firm, for instance, with a client with operations around the country, might have to forgo Massachusetts placements unless it has or is willing to open an office in that state.

Even if it manages to continue placing workers there, it could see costs rise, since the bill requires staffing firms to pay food and lodging costs should an out-of-state worker arrive and not immediately be put to work.

(Different provisions apply to states that are contiguous to Massachusetts, raising issues about interstate commerce that could end up in federal court.)

Even that seemingly benign disclosure requirement is causing the industry heartburn. It requires as many as 17 different items be disclosed in writing and sent to the employee.

Carlson explained that most of what the bill requires is already part of every firm’s standard operations. Employees obviously have to be told where to report, when, and to whom. What they’ll be doing, how much they’ll be paid, and, the approximate duration of the employment are also passed along, says Carlson.

But with some firms placing dozens of workers  a day — Dwyer said 40,000 temps, on average, are on the job every workday in Massachusetts — “it’s an administrative burden to put everything in writing,” says Carlson, who points out that the industry practice is to handle things by telephone.

“I have a number of people who want to work a day here, a day there,” he says. In some instances, a temp request for a replacement clerical worker or receptionist might last one or two days. The disclosure form would arrive after the job is over.

The cost, too, is an issue. As the number of daily temps placed goes up, so does the work involved in sending each the required disclosure. Passing the cost along to the client isn’t always possible, so, Carlson points out, workers could end up with a lower hourly wage.

With so many of the provisions of the bill having little or nothing to do with curbing abuses of day laborers, Carlson fears that it’s a first step on a slippery slope that could lead to imposing restrictions on the entire employment industry.

“I understand the spirit of the legislation,” he says, “but this is so broad that it pushes us down a slippery slope … The definitions (in the bill) are broadly written, and if they get accepted by everyone, then they can be used in ways to encompass everything we do.”

The Massachusetts Staffing Association, the national organization, and Carlson’s MAPS group are rallying staffing firm owners for a show of force at a hearing June 9th by the Legislature’s Joint Committee on Labor and Work Force Development. Carlson says he hopes to have 100 people there to educate the officials on what staffing firms do and how they work.

As for policing the bad apples and protecting the day laborers, the ASA’s Dwyer says laws already on the books in Massachusetts are adequate. They just have to be enforced.

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

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

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

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

At least four states — Hawaii, Illinois, Oregon, and Washington — now limit the use of credit histories in hiring. Massachusetts and Hawaii also prohibit asking about criminal records on initial applications.

Doing business outside those states is no safe harbor. The Equal Employment Opportunity Commission has turned up the heat on the use of credit histories, suing Kaplan Higher Education Corp. last December. The suit claims Kaplan denied jobs based on credit histories in such a way that it had a disparate impact on blacks.

That suit came not two months after the EEOC held hearings on the use of credit checks in hiring. In opening the hearing, EEOC chair Jacqueline Berrien set the purpose:

As the nation’s leading enforcer of federal laws prohibiting employment discrimination, the EEOC’s ultimate concern is whether these screening practices, devices or tools deny equal employment opportunity to any workers in the country and are keeping qualified and capable people from entering the workplace for unfair reasons.

No surprise that Nick Fishman, VP and co-founder of EmployeeScreenIQ, blogged a warning. “The EEOC is especially targeting ‘bright line’ hiring decisions that automatically exclude candidates with criminal records, arrest records that don’t result in a conviction, and/or poor credit.”

Yet, just a few months later, the EmployeeScreenIQ survey found that 8 percent of companies will outright reject a candidate based on adverse background information. In fairness, the report notes that it is possible all those companies are in regulated industries (transportation, for instance) where certain types of black marks are mandatory disqualifiers.

On the other hand, 92 percent of the respondents said they’d either give the candidate a chance to explain the situation, or would weigh other factors more heavily. Indeed, in another part of the survey, 90 percent of respondents weighed qualifications as most important or important in making a hiring decision. Next, was the interview with 75 percent rating it as important or most important.

The survey had some other interesting tidbits such as despite finding that 53 percent of employers use LinkedIn to source candidates, only 35 percent ever use it for background screening.

Of those who do use social networking and other online sources for backgrounding, most would knock out a candidate only if they discovered the person had lied about qualifications or made discriminatory remarks. But 50 percent would also eliminate a candidate based on the kind of pictures that were posted or details about drinking or drug use.

Those latter two in particular could get you in trouble. As the report points out:

Unfortunately employers who make such judgment calls based on social networking results may legitimately fall into the crosshairs of the EEOC and other regulatory agencies. Employers are encouraged to create a corporate social networking policy that prohibits the use of protected class information found on such sites, and that calls for validating negative information before taking action.

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

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

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

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

In the DoJ settlement, the six firms agreed to refrain from “entering, maintaining or enforcing any agreement that in any way prevents any person from soliciting, cold calling, recruiting, or otherwise competing for employees. The companies will also implement compliance measures tailored to these practices.”

In announcing the settlement in September, the Justice Department didn’t allege a single grand conspiracy. For instance, the DoJ said that in 2005 Apple and Adobe agreed not to cold call each other’s employees. Thereafter, Google and Apple agreed to do the same, and so on among the six firms.

Detailing the individual arrangements, the suit, however, pointedly says:

Defendants entered into, implemented, and policed these agreements with the knowledge of the overall conspiracy, and did so with the intent and effect of fixing the compensation of the employees of participating companies at artificially low levels. For example, every agreement alleged herein directly involved a company either controlled by Apple’s CEO, or a company that shared a member of its board of directors with Apple.

Joseph R. Saveri, attorney with the firm that brought the case, Lieff Cabraser Heimann & Bernstein, in a statement said, ”We estimate that because of reduced competition for their services, compensation for skilled employees at Adobe, Apple, Google, Intel, Intuit, Lucasfilm, and Pixar was reduced by 10 to 15 percent.”

The companies managed that, the suit claims, because, ”The recipient of the cold call has an opportunity to use competition among potential employers to increase her compensation and mobility.” Others benefit even if they don’t get called when their co-workers share information about the opportunity and the pay range.

The Justice Department made almost exactly the same point in its announcement of the settlement in September. The agreement among the companies not to cold-call each other’s workers “eliminated a significant form of competition to attract highly skilled employees, and overall diminished competition to the detriment of affected employees who were likely deprived of competitively important information and access to better job opportunities.”

The suit names just one plaintiff, former Lucasfilm software engineer Siddharth Hariharan. However, if the court agrees to certify the class, it could potentially involve tens of thousands of participants.

Intel said it planned “a vigorous defense.” Lucasfilm called the action “meritless.” None of the other companies has yet issued a statement. Adobe and Intuit told CNET they wouldn’t comment.