Let me remedy that with some tales from the gurus, starting, appropriately, with the good news from HRGuru (by Monster) that “office relationships are no longer taboo.” In the how-to article, HRGuru notes that 58 percent of workers have had an office romance (quoting Vault and not, understandably, the CareerBuilder survey I’ll mention in a minute).

Citing another survey, the article says almost everyone thinks it’s OK to date a co-worker. But date a boss? No way say workers, with women (at 82 percent) much more opposed than men (73 opposed).

Sadly, the very next issue addressed in the article is sub-headed “Sexual Harassment Claims.”

But that’s an HR problem. Oh, yeah. Most of us are recruiters, but oh so many of us also wear HR generalist hats and sooner or later will wind up dealing with some form of office romance or harassment issue.

I once had to deal with an issue where one of my best directors was involved with a subordinate who also was first rate. The two had kept it a secret for months; there wasn’t even gossip about them. I only discovered it accidentally. They eventually moved in together, changed jobs together. Alas, just months before their wedding, they broke up.

Fortunately, a CareerBuilder survey finds that for about a third of workers who date each other, the romance ends in marriage. Now that’s an employee benefit you don’t see on corporate career sites, unless eHarmony or Match have it there somewhere.

The CareerBuilder survey also found that co-worker dating is not as prevalent as Vault found it was. Only 37 percent of workers said they have dated a co-worker at some time during their careers, a data point in line with CareerBuilder surveys of past years.

Some other survey findings:

• “Eight percent of workers currently work with someone who they would like to date, with more men (11 percent) than women (4 percent) reporting they would like to do so.”
• ” Twelve percent of workers reported that their relationships started when they ran into each other outside of work.”

As you end your workweek and look forward to Valentine’s Day, let love blossom. Next week is soon enough to check your company’s sexual harassment and office conduct policies. Just make sure you do.

I caught up with her on the phone to go over a few of those questions. Mary Kay Mauren, senior attorney advisor, was also on the call.

Peter Zollman, for example, wrote in his informative Classified Intelligence Report that he understood from Miaskoff’s presentation that:

If you find a job-seeker’s blog that shows him to be a racist, you cannot consider that information as you consider him for the position.

Zollman, I told Miaskoff, must have misunderstood. I asked her: “Since racists aren’t a protected class, you’re plenty able to reject them just for being racists, aren’t you?”

She agreed.

Video OK but Slippery

I’ve also been talking both on the phone and via email with Joyce Lain Kennedy, the careers columnist. Following the Miaskoff talk, Kennedy wanted to know if the EEOC expects “more official EEOC discrimination complaints in the future that are based on the growth of visual media showing ‘old, fat, ugly’ in the initial stages of the recruitment process?”

“Not necessarily at all,” says Miaskoff. “We see nothing to indicate that there will be a spike in complaints … (but) it also strikes us — a personal observation on my part — the video nature of it, the fact that you can sort of watch someone when you don’t have the social controls face-to-face where you have to keep your opinions to yourself, is sort of a slippery slope for people doing screening.”

In other words, she says, face to face, you’re more likely to keep your reactions and opinions (verbal or non-verbal) to yourself out of politeness or other social norms. With a video, Miaskoff says it’s a lot like watching TV, where you feel more detached.

Again, she says, the EEOC is not “battening down the hatches” for an increase in complaints about video resumes. But “if video resumes are part of the electronic trail in a case, we’ll follow it. It’s part of the record.”

Kennedy is concerned that bias will creep into companies that lack the budgets and staff to add in the checks and balances necessary to prevent discrimination that occurs after seeing a video. She gives the example of Stephen Hawking. What would happen if he had been screened via video?

Miaskoff says two things. One, there “needn’t be the Cadillac of controls.” Just some sort of policy or practice in place for personnel procedures, whether its hiring, promotion, demotion, and so on.

“You’re certainly better off if you have a policy and you give it to people and you train people and make sure they read it (and sign indicating they have), and repeat that process a few times a year — you’re certainly in a better place than if you don’t.”

The second thing Miaskoff says about video resumes is that it’s not like having a big staff and budget with HR pros and attorneys has ended discrimination anyhow. “People are not infallible,” she says.

Blogs, Assessments

My coworker Elaine Rigoli says: “One question that was posed to me after her presentation focused more on legal issues surrounding existing staff (not those you want to hire off the street). For example, what to do when you discover that an otherwise great employee has a blog of some type that bashes the company/product/colleagues. Probation? Fire? Allow it?”

“That’s not an EEO issue,” Miaskoff says. “Unless the employer (for example) only discriminates against women who have nasty blogs about the employer, and doesn’t discriminate against men.”

John Zappe asks how the New Haven firefighters decision affected the determination of when something had an adverse impact on a protected class that rises to the level of a possible Title VII violation. What advice is the EEOC now offering to employers about determining adverse impact?

“We obviously have to comply with the Supreme Court,” Miaskoff says. “That’s the bottom line.”

I got the sense from that answer, and from Miaskoff’s tone, that the ruling made life more confusing for the EEOC.

Miaskoff says employers “need to go through the validation process for all of their tests. They need to do it carefully. They need to have their documents in place (showing) that they’ve done it. Once they move forward if a test is validated which it means it’s predictive of success in a particular job they’re hiring for, even if it has a disparate impact on minorities, it will be legal. People assume that if it has a disparate impact it will be illegal.”

If the test has a negative impact on minorities, she says, “the employer is in the spotlight and has to prove it’s truly predictive of success. Qualifications trump race.”

She says the general wisdom as she understands it, from talking to I/O psychologists, is that “written tests almost always have an impact on minorities, so you have to be careful. You have to make sure you’re using the least discriminatory alternative.” Some really big corporations, she says, are moving away from written tests and toward more functional tests.

Here’s the video of Miaskoff speaking at the ERE conference last month in Hollywood, Florida.

First announced two years ago in August and almost as quickly blocked by the courts, the “no match” rule required employers to fire workers who couldn’t resolve discrepancies in their Social Security information. The rule took its name from the letters the Social Security Administration sent to employers informing them there was no match between SSA records and what the employer provided.

Homeland Security laid out a fairly rigorous series of steps that, if followed, immunized an employer from legal consequences for hiring the “no match” worker. Termination of the employee was one of the steps when a mismatch couldn’t be resolved.

The AFL-CIO, ACLU, and other worker and immigrants’ rights groups sued and won a restraining order preventing the “no match” rule from being implemented. Other groups, including agri-businesses, farm owners, and some builders also opposed the rule, despite its safe harbor provision.

Among the arguments the groups made was the existence of errors in Social Security records, and that the rule would keep employers from hiring foreign-born workers, or those who appeared to be, rather than risk a no match ruling.

With the court siding with the labor groups, and the growing emphasis being placed on the E-Verify program, not much has happened with the no match program. The U.S. Social Security Administration has even stopped sending no match letters.

Finally in July, Homeland Security threw in the towel, saying it would rescind its proposal. That was done Wednesday when the government published a final rule in the Federal Register. The recession takes effect on Nov. 6th.

“It’s a good best practice to have,” counsels Christopher Olmsted, a specialist in labor and employment law and partner in the San Diego firm Barker, Olmsted & Barnier. Now, in the wake of a new federal appeals court decision, proper vetting is “even more important,” he says.

Last month, the 2nd District Court of Appeal based in New York, said an employer is liable for the misdeeds of its hiring agents, even if it considers them independent contractors.

Said the court: “We hold that an employer may be held liable for discrimination by third parties, including independent contractors, that the employer authorizes to make hiring decisions on its behalf.”

The case arose when a candidate was rejected for a job showing apartments to potential tenants because, the candidate alleged, he was too old.  Michael Halpert, the candidate, sued Manhattan Apartments, the rental company. But it said it wasn’t liable because one of its  independent contractors was involved and under previous decisions it wasn’t responsible for the actions of a third-party recruiter.

The New York Appeals court rejected that contention and ruled, “If a company gives an individual authority to interview job applicants and make hiring decisions on the company’s behalf, then the company may be held liable if that individual improperly discriminates against applicants on the basis of age.”

In Olmsted’s view, an RPO or HR outsourcer given authority to make hiring offers, would become an agent of the employer. And under the law the employer is responsible for the actions of the agent.

At the other extreme is simple name generation or application screening where all candidates meeting the job requirements are submitted.  “If they are just shuffling paper, then there’s no hiring authority involved,” Olmsted says.

But what about those (very common) situations where a third party is retained to source and screen candidates? Or conduct a first interview? Or rank them, and present the list?

That’s where things get murkier, he agreed. “The case does very little to tell when this agency agreement arises,” he says. “As soon as the recruiter is given some responsibility… then the question arises.”

In an analysis he wrote for the law firm’s website, Olmsted advises, “When hiring recruiters or other service providers, engage in ‘HR due diligence’ by confirming their understanding of and commitment to EEO practices.”

Technically, the opinion of the New York appeals court applies only to federal courts in the second district. However, like Olmsted, attorneys across the country are advising employers to be especially careful when hiring outside recruiters.

In a filing with the Securities and Exchange Commission today, Monster Worldwide says it will pay $4.25 million in full settlement of the action. “A substantial majority” of the money will come, the company says, from insurance “and contributions from another defendant.”

The filing, Taylor v. McKelvey, et. al.,  does not name the other defendant. However, the now-deceased former chairman and CEO Andrew McKelvey is one of at least six former Monster executives and directors who were sued.

Monster said it will reverse $6.85 million it had previously set aside in connection with this litigation in its 3rd quarter financials.

In its most recent quarterly filing with the SEC, Monster said the now-settled Taylor case was “one civil action pending against it in connection with its historical stock option granting practices.”

Whatever the case, if you have ever felt as though you might be running into legal issues, the U.S. EEOC’s Assistant Legal Counsel Carol Miaskoff says to listen up to the following basic rules:

Facebook and Similar Social Networking Sites

When you have interactions with people on these sites, keep in mind non-discrimination principles, says Miaskoff.

“If race, gender, or age is obvious, you need to not let that control your reaction to the person; that’s the same skill you would bring to an interview. It sounds so basic, and it is basic,” she says.

Encourage team-wide use of simple procedures when scouting sources like Facebook, MySpace, or LinkedIn. For example, provide basic training to your team; institute new procedures; or follow a set of questions that prompt your team to move beyond that “gut-level reaction.”

Blogs

Lots of people have them, and some people will blog about things like a personal illness. What to do when you stumble over this information?

Although ADA rules mean recruiters must assess qualifications first, without asking questions about disabilities, there is a caveat.

“If you inadvertently stumbled upon the information, you have NOT violated the ADA [Americans with Disabilities Act], which prohibits pre-offer questions about disability,” she says.

Video Resumes

Although there are no court rulings on video resumes yet, Miaskoff says recruiters must be prompted to look at the same qualifications, despite a person’s appearance.

“In and of itself, there is nothing wrong with them. So have feedback from various, diverse sources on your team who all view the video resume,” she says. “Put checks in there so you don’t have one person discriminating.”

Video resumes are also employment records and need to be retained for two years. This is where reluctance comes in to use them, she says. Because people are concerned about keeping a picture of someone who has been screened out of your company’s hiring process, there is sometimes an added fear of litigation.

Still, “that’s not a good-enough reason; if you have good documentation in place as to what your process was, you will be able to show you gave everyone fair and equal consideration.”

Public Information: Criminal Background Checks

The EEOC has some rules governing background checks as well.

“This is an area where the EEOC policy says it is ok to do a criminal background check; there is no prohibition categorically,” she says. But the check has to relate to the job in question and whether the conviction fairly screens out a candidate and his or her ability to do the job.

“Obviously, there are crimes that disqualify people for jobs,” she says, “so look at the relationship to the job.”

Public Information: Credit Checks

There is not half as much legal authority out there about screening people out on a bad credit score, she cautions.

“Now, you must again ask whether not being ‘credit-worthy’ is consistent with the job in question. It might be with jobs related to access to money. You really have to think this through.”

Online Testing

The New Haven firefighter case is the most prominent recent testing case, she says.

Testing is a tool used to decide who you will consider for a job. “Look at the impact and job-relatedness carefully,” she says. “This applies to all tests, including personality assessments.”

Accessibility

ADA rules require that people with disabilities have equal access to all employment opportunities. Beyond reasonable accommodations, online recruiting means having online software and tools available to people with poor vision, are hard of hearing, or have trouble using their hands.

Think of “simple accessibility” when you use online tools, she says, including “employment web pages, online recruitment, and online applications.”

Now, the details.

Elance

TechCrunch, the business blog about the tech industry, reports that outsourcer Elance had user information stolen via a security hole on its website.

Elance sent emails to its users alerting them to the hack and reassuring them that though name, email address, telephone number, city location, and Elance login data was stolen, no financial, Social Security numbers or credit card information was compromised.

Elance facilitates connections between information contractors and companies needing project help. Employers post jobs or RFPs and can also search the list of profiles to find a match. Professionals can bid on jobs. Elance collects a percentage for facilitating the match and handling the payments. Technical work predominates, but there are opportunities for marketers, contract sales, public relations and editorial and design workers.

Elance didn’t say how many records were stolen. The disclosure, though, comes at a time when TechCrunch has been in the news over its release of internal Twitter documents that it was sent by a hacker who gained access to an emplyee’s account.

Cytiva

With hacks making the news, it’s serendipitous that HR software provider Cytiva has come out with a white paper dealing with ATS security. (You may know the company better as the maker of SonicRecruit.)

The report understatedly admits that, “Despite all the benefits of SaaS applicant tracking systems, there have been a few bumps in the road with regard to data security.” It then goes on to mention three incidents, including the infamous Monster hack of August 2007.

“When it comes to HR data in general, since early 2006,” the report notes, “There typically have been four to six media accounts of HR data breaches per month, according to consulting firm HR Privacy Solutions.”

What’s particularly refreshing about this white paper is that it’s not a sales job for SonicRecruit. The paper actually offers helpful information for HR professionals concerned about the security of their system. (If you aren’t, you should be, especially if you use a SaaS-provisioned system.)

You may already be thinking about changing passwords and making sure the vendor has a tech staff that monitors the system for, among other things, suspicious activity. But would you think to ask your vendor about the physical security at the server site? Get the paper and you will.

Kenexa

First sued in June on allegations it didn’t disclose certain information it should have, Kenexa has now been sued by a second law firm sponsoring a second class action.

A legal piling on, the new suit by Barroway Topaz Kessler Meltzer & Check, LLP, repeats the same claims as the first: That in the summer and fall of 2007 Kenexa officials knew, but failed to report, that one of their bigger RPO customers wanted out of its contract; that sales cycles were lengthening, which meant revenue growth would be curtailed; that international sales were suffering; that financial controls needed improvement, and; because of that company executives had no reasonable basis for making the claims they did about Kenexa’s financial well-being.

The press release issued by the law firm doesn’t say how much is being sought by way of recovery. But based on the number of shareholders and the stock price differentials, it’s at least into the eight figures. (The stock price dropped by about a third on the day in 2007 when Kenexa released its quarterly financial report.)

Kenexa didn’t respond to a request for comment in June and hasn’t so far this time, either.

One coincidence that will at least make these cases “green” in the environmental sense: Kenexa and the two law firms are all in Pennsylvania, though, fittingly, Kenexa is at the western end and the lawyers are in the east.

A complete discussion of the intricacies and technicalities of validation, discrimination, adverse impact, and differential prediction is beyond the scope of the words I am writing today. Suffice it to say that this case has placed competing priorities in the use of testing in the spotlight. These competing priorities are using fair testing while striving to eliminate discrimination in hiring. While title VII of the Civil Rights Act of 1964 has attempted to provide some guidance in relation to these competing goals, the Ricci case has laid bare some critical issues that in my opinion certainly call for the government to re-evaluate and modernize the standards it has set.

We are mandated to use valid tests. Valid tests can often lead to minorities being hired at lower rates than those of other races. This is seen as OK as long as the test has been validated, because in theory this means the test is job-related and job-relatedness is the standard by which the legality of testing is determined.

However, what are we to do when sticking to the use of validation — as we have been asked to do — creates a situation that actually inhibits the goal of ensuring diversity and fairness? This has been a thorny issue for those of us in my profession for a long time. There is no magic bullet. The dissenting opinion in this case led by Justice Ginsburg rallies around the idea that the spirit of diversity and fairness should be the highest standard to which we aspire in hiring. It is hard to argue with this point … except for the fact that there are technical issues which can stand in the way of our achievement of this goal.

So, what does all this mean for hiring in the corporate world? I offer my humble answer to this question as follows:

Don’t Panic -- Police and fire testing is the most highly scrutinized type of testing known to mankind. Don’t panic based on the results of this case. Do use this as a time to think about your use of testing and where it may leave you exposed.

Validate, validate, validate -- In this case the validity of the test was upheld. In my mind the validity of the test, while an issue, was not the main issue at hand. The only reason the city tried to throw out the test was because it ended up being counter to its goal of diversity. Despite this, I cannot stress enough the need to validate all testing that is used to make employment decisions. It is the cornerstone of best practices in testing and provides the documentation you will need should you find yourself in court. Without such documentation, you are toast! As an added bonus, validation is the process that provides awareness of issues such as adverse impact. You may not even know you have a problem unless you take the steps to validate. Remember, ignorance of the law is no excuse!

Look at the bigger picture -- I agree with Justice Ginsburg that the overall goal of eliminating discrimination is the highest standard to which we should be held. In the corporate world this becomes an issue of fairness in hiring practices across the board. One of the biggest ways to guard against problems while working to achieve diversity is to look at the demographics of your workforce vs. those of the available workforce in the area. If these do not look about the same, you have a problem. This problem can be rectified by actively recruiting for diversity. Diversity training programs are OK, and of course I support them, but the best thing to do is to put your money where your mouth is and be aware of your demographics and seek to hire diversity at all times.

Seek out testing that has been shown to reduce adverse impact -- The Uniform Guidelines on Employee Selection Procedures pretty much lay down the law when it comes to testing. A key part of this doctrine is that one should always seek out tests that are known to have less adverse impact. We know that cognitive tests have the most adverse impact while also providing the best predictive accuracy (i.e., validity). Resolving this conundrum remains the crux of the issue, with the Ricci case as firefighter tests are highly cognitively loaded. In the real world I feel this issue is best addressed via awareness of what is required for the job and by seeking out selection procedures that we know can test cognitive traits while displaying lower levels of adverse impact. If you guessed that I was going to recommend simulations as the best way to accomplish this goal, you are correct! The issues of this case are yet another piece of evidence that clearly demonstrates the value of simulations over more traditional types of testing.

I look forward to the discussion that my opinions generate and I am glad to see my corner of the hiring world getting its brief exposure in the national media spotlight. I certainly hope that the awareness generated should serve as a catalyst for change.

Ruling 5-4 in the case of Ricci v. DeStefano, the court’s majority said just because a disproportionate share of whites pass a test does not make the test discriminatory. Writing for the majority, Justice Anthony Kennedy said invalidating test results because of the statistical racial outcome, “… is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.”

Now, before an employer looking at the racial makeup of those who passed and failed a promotional exam and, almost certainly, other types of employment exams, can decide to throw out the results because it fears a discrimination lawsuit, it must have “a strong basis in evidence” to believe the test is discriminatory under Title VII of the Civil Rights Act of 1964 and its amendments.

Employment lawyers reacted with caution, saying the 92-page decision, including a dissent by Justice Ruth Bader Ginsburg, will take time to digest. Their initial impression, however, is that the court appears to have tempered if not invalidated the 80 percent rule of the Equal Employment Opportunity Commission. That rule states that the selection of a group at less than 80 percent of the group with the highest rate will be considered by the EEOC as evidence of discrimination.

However, the Supreme Court ruled statistics are not enough to show disparate impact. The decision says, “… a prima facie case of disparate-impact liability — essentially, a threshold showing of a significant statistical disparity …  and nothing more — is far from a strong basis in evidence that the City (of New Haven, Conn.) would have been liable under Title VII (for discrimination) had it certified the results.”

Merrily Archer, an employment lawyer in the Denver office of Fisher & Phillips who was previously with the U.S. Equal Employment Opportunity Commission, says the decision appears to be “completely at odds with the EEOC guidelines.”

Merrily Archer

“What does it mean to say an employer needs a strong basis in evidence?” she says. “My concern is an employer in the trenches. How is an employer going to apply this?”

“I disagree with the decision,” Archer adds.

A second attorney, who asked not to be identified because he had not completely read the opinion, suggested that the “court has muddied things up. The 80 percent rule was pretty straightforward for an employer: If you didn’t hit that percent, you had a problem.”

Today’s decision came in a case from New Haven, Conn. brought by a group of  white and Hispanic firefighters who scored high enough on a promotional exam to have been appointed to one of several captain and lieutenant openings in the department. No blacks were in the promotional group, although they made up about 30 percent of the department’s workforce in 2003 when the test was given.

Although New Haven spent tens of thousands of dollars hiring consultants to develop the promotional exam and validating it, the city’s Civil Service Board refused to accept the results, essentially denying promotions to the successful test takers. It heard testimony over five days that the test was deficient and that a less-discriminatory test existed. In the end, the city’s decision was based largely on the statistical results, which showed the promotional exam had a disparate impact on blacks.

Kennedy’s decision invites employers to engage stakeholders in the planning, design, compilation, and validation of these exams, but doesn’t require any particular process to be followed in the development and selection of a test. Once the test is given, though, the mere statistical results are not enough to invalidate it. Writes Kennedy:

“Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, §2000e-2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race.”

The court’s decision is a victory for the firefighters who sued and a slap to Supreme Court nominee Sonia Sotomayor. She was one of three appeals court judges who issued a one-paragraph ruling upholding the city’s decision. The brevity of the decision as well as the notoriety of the case has become an issue in  her confirmation by the U.S. Senate.

Lead plaintiff, Frank Ricci, became a sympathetic figure after telling the Civil Service Board that he had dyslexia and had paid a neighbor to read onto tape the study materials.

He sued under the Age Discrimination in Employment Act, which,  like Title VII of the Civil Rights Act, prohibits discrimination, but which, unlike Title VII, hasn’t received the same attention from Congress over the years.

Gross won $47,000 from an Iowa jury. The verdict was upheld on appeal. But Thursday, in a historic employment decision, the U.S. Supreme Court overruled the lower courts in Gross v. FBL Financial Services, declaring that it is up to plaintiffs to prove age bias was the reason for an adverse action against them by an employer.

The court’s decision throws out a long-standing rule by which an employee could prevail on an age bias claim if they could prove age was a factor, even if it wasn’t the only one. Once the employee plaintiff established that with evidence, it was up to the employer to show a legitimate reason for taking the action it did.

These so-called “mixed motive” cases reflect such real-world situations as where layoffs fall disproportionally on older workers who tend to have higher pay than younger workers. In that kind of case, replacing older workers with younger ones may be one of multiple reasons considered by the employer. To make a bias case, however, a dismissed worker previously needed only to show that age discrimination was a part of the decision. That shifted the legal burden to the employer who then needed to show that the decision — in this example a layoff — would have been handled the same way regardless of worker age.

The Supreme Court ruling, written by Clarence Thomas and decided on a 5-4 vote, invalidates this two-step process — shifting the burden of proof — and places the entire burden of proof on the employee.

“The burden of persuasion does not shift to the employer even when a plaintiff has produced some evidence that age was one motivating factor in that decision,” Thomas writes in his decision.

Congress amended Title VII when a similar court decision threatened to derail protection against race, religion, and other forms of discrimination. Age protection is not part of Title VII, but was enacted in the Age Discrimination in Employment Act and was not affected by the Title VII amendments.

That point was made in the majority decision. “Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor,” Thomas writes in the opinion. “We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not to make similar changes to the ADEA.”

Advocacy groups such as the AARP were quick to denounce the opinion and called on Congress to overrule it with legislation.  Business groups, on the other hand, hailed the decision. Without it, said the National Federation of Independent Business, employers would have been subjected “to countless allegations of discrimination.”

Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito joined Thomas in the majority. Justices Stephen Breyer, David Souter, Ruth Bader Ginsburg, and John Paul Stephens dissented.

Foreshadowing the Firefighter Case?

The split, along ideological lines, is a possible foreshadowing of the pending decision in Ricci v. DeStafano, the case of the New Haven firefighters who lost a chance at promotion when their civil service promotional test results were invalidated.

In that case (story here), not one black firefighter scored high enough to be considered for promotion, while 18 of the top 20 scorers were white; two were Latino. The Civil Service Board in New Haven, Connecticut, which conducted the test, refused to certify the results, meaning no promotions were given. The basis for that decision lies in the disparate impact test of Title VII.

While in the Gross v. FBL Financial Services case the issue was age discrimination and the ADEA, the court’s conservatives have leaned toward making discrimination harder to establish. The Gross decision continues that trend and suggests Ricci could be decided in favor of the firefighters by the same 5-4 majority.

Of course, that’s just tea-leaf reading. The court has other options, including sending the case back to a lower court with specific instructions, should it wish to duck a decision in that emotionally charged case, complicated now by the nomination of Sonia Sotomayor to the Supreme Court. She was one of three judges to sign off on the two-paragraph appeals court decision upholding the lower court’s ruling in favor of New Haven.

So much has been reported and written about the case of Ricci v. DeStafano that it’s almost impossible to have missed the story of how 20 New Haven, Conn. firefighters were denied  promotions although they came out on top in civil service tests for lieutenant and captain. Eighteen of the top scorers were white; two Latino. None were black, although the city is 37 percent black and blacks made up 30 percent of the fire department in 2003, when the test was given.

When the city’s Civil Service Board got the results, it feared certifying the test would expose the city to a Civil Rights lawsuit on the basis that the test had a disparate impact on a protected minority. But not certifying the results meant an almost certain lawsuit from the successful candidates who might claim, as they later did, that they had been discriminated against based on their race. A part of Title VII of the Civil Rights Act of 1964 makes it illegal to “alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.“

The Morton’s Fork faced by the board was underscored by its 2-2 vote on certification, an outcome that meant the test results were not certified.

New Haven’s dilemma was neatly described by Justice David Souter during the Supreme Court hearing on the matter in April.

David Souter

“The problem I have with your argument,” he told the attorney for the firefighters, “is that it leaves a municipality or a governmental body like New Haven in a damned if you do, damned if you don’t situation… If they go forward with their hiring plan, they certify the results and go forward with it, they are inevitably facing a disparate impact lawsuit.

“If they stop and say, ‘Wait a minute, we’re starting down the road toward a disparate impact lawsuit and, indeed, there may be something wrong here,’ they are inevitably facing a disparate treatment suit. And whatever Congress wanted to attain, it couldn’t have wanted to attain that kind of a situation.”

Key questions

The key question the Supreme Court must decide is: Can a municipality — and potentially any employer — can reject the results of a test for racial reasons, even if a disparate impact is not proved? There are two other specific questions presented for the court, but they boil down to the same fundamentals.

Under court decisions and the Civil Rights Act of 1964 as amended by Congress in 1991, an employer can be found to have discriminated, and thus be in violation of the law and subject to civil penalties, if a “facially neutral employment practice… has an unjustified adverse impact on members of a protected class.”

But if the employer can show the test is job-related and there is a business necessity for its administration — say, testing the ability of a firefighter candidate to hoist a ladder while dressed in full gear — then the employer may be able to escape liability. However, there is a loophole here. The group claiming discrimination may still prevail if it can show that there are other, equally valid assessment methods meeting the employer’s objectives that don’t result in a disparate impact.

Job simulations

In the only published academic research comparing the results of pencil-and-paper tests (like the one administered to the New Haven firefighters) and interactive simulation testing, Amy Mills, of Aon Consulting, and Dr. Neal Schmitt of Michigan State University found little difference in the predictive value of the two on job performance. They did find that with the simulation, the performance of minority candidates was similar to that of white candidates. On the pencil-and-paper tests, minorities scored significantly lower.

“There’s less of an adverse impact in simulations than in the pencil-and-paper tests,” Schmitt told us for an article published in the May 2009 issue of the Journal of Corporate Recruiting Leadership.

In fact, in the New Haven test, the city weighted the written multiple-choice part, which is the subject of the lawsuit, at 60 percent of the overall score. An oral exam was weighted at 40 percent.

Though the disappointed firefighters presented evidence supporting the test, while the city offered statistical data to demonstrate a prima facie case of disparate impact, the validity of the test as a promotional tool was never actually at issue. Instead, the federal court ruled that the city had the right to throw out the results.

In ruling for the city, U.S. District Judge Janet Bond Arterton called the city’s decision “race neutral,” since “all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process.”

The Second Circuit Court of Appeal upheld the decision in a single paragraph, that has now become a central part of the national judicial debate because Supreme Court nominee Sonia Sotomayor was one of the three judges to hear the firefighters appeal.

What will the court do?

Many observers think the court will rule in favor of the firefighters.

Chief Justice Roberts

Chief Justice John Roberts signaled his dissatisfaction when he asked during the oral arguments if the city was to “get do-overs until it comes out right?”

Justice Antonin Scalia challenged the idea that the city had been racially neutral in tossing the results. “It’s neutral because you throw it out for the losers as well as for the winners? That’s neutrality?”

If the court does overrule the lower courts, it could simply order the case back to the lower court to decide the city’s motives in tossing the test. The city would then be in the uncomfortable position of attacking the validity of a test it commissioned and approved, but Title VII would remain intact.

The possible, broader implications of a reversal could be the watering down of the “disparate impact” portion of the Civil Rights Act. The court could say the city had no right to refuse to certify the test simply because of the outcome.

At the extreme, the court could go so far as to rule sections of the Civil Rights Act unconstitutional, though almost no one expects that broad a decision.

As companies increasingly manage their recruitment in a regional or global context, recruiters are more often in a different country from the positions for which they are hiring. This can be a real compliance risk.

Legislation in the UK that affects hiring processes has expanded substantially in recent years, in particular around the area of discrimination. With that in mind, and as the UK is one of the world’s larger economies, I thought it might be useful for others if I highlight the key areas that need to be considered when recruiting for your organization’s UK entity.

These are stipulations in UK law, and you are expected to know them. In the UK legal system, ignorance is no defence. This advice is also no substitute for professional legal consultation (see the end of the article for more on that), but I hope it provides useful guidance.

Discrimination

As is common in many countries, UK law prevents employers from making a hiring decision based directly or indirectly upon discriminatory grounds such as sex, race, age, ethnicity, or disability. If you have an equitable hiring process, you could be forgiven for thinking that this article will therefore be of little relevance to you.

You are probably wrong.

I am sure we can all spot and avoid direct discrimination in our hiring practices, but UK law also gives protection to prospective employees from indirect discrimination. This is much broader in its definition, and has tripped up several companies recently (ironically, some of these have been law firms).

Indirect Age Discrimination

Age discrimination is now a major pitfall for many companies in their recruitment advertising, as indirect discrimination can make it a challenge to accurately describe roles in detail. For example, it is no longer permissible to state that candidates must have “Three or more years of experience in…”

If someone who has 2 1/2 years of great experience could actually do the job, then this statement would be considered discriminatory.

The most common workaround to this problem is to use adjectives to indicate relative competency strengths. For example, advertisements can refer to a requirement for “Strong experience with…” or “Solid experience of…” etc.

Further, employers must also avoid indicating any age preference in their corporate culture (as this can be interpreted as an inherent bias). Any reference to a “young team” or “dynamic environment” are both rocky ground.

Indirect Racial/Ethnic Discrimination

A recent employment tribunal has provided much greater clarity on indirect racial discrimination, and this is perhaps the most challenging circumstance of all. In the case of Osborne Clark Services vs. Purohit, a candidate had applied for a training role with a UK law firm whilst not having a valid right to work in the UK. The employer had a policy of never accepting applications for training contracts from non-EEA (European Economic Area) nationals who required work permits to work in the UK. As a result of this blanket policy, the prospective employer screened the candidate out of its selection process at an early stage on the basis of his work status, and the candidate accused the employer of racial discrimination. He won.

The ruling defines that all candidates, regardless of work status, must be considered equal, and hiring decisions can only be made based upon merit alone. However, in the current economic climate, the UK government has also clamped down on the distribution of work permits to non-Europeans, so the possibility of being able to hire someone from outside the EEA is not guaranteed.

The employer attempted to argue that the number of potential applicants for training posts would involve the employer engaging in considerable administrative costs in making work permit applications which were destined to be unsuccessful. This argument was not accepted and it was stated that work permit issues should only come into consideration at the last stages of selection. For employers, this has the potential to mean that recruiters must spend much greater amounts of time screening applicants for positions, and also managing their processing (where they are required to obtain the right to work in the UK).

On a side note, it is worth noting that the work permit regime in the UK was replaced in November 2008 by the Tier 2 skilled worker category. As the labor market test applies equally to Tier 2 applications as it did to work permits, the same considerations as arose in the case discussed above would still apply to applications subject to the new regime.

In conclusion, the picture is both challenging and at times contradictory. Companies should be particularly careful not to assume that advertising styles that are appropriate in the U.S. (and even other European countries) are legitimate in the UK.

Ultimately, it is at the discretion of individual companies to decide whether the most cost-effective solution is to adopt an outgoing search model (using networks and social networking tools), and not to advertise at all. The jury is still out on that.

Key Action Points

Do not justify any hiring decisions (or eliminations) based upon any discriminatory grounds, including:

• Length of Experience
• Immigration status
• Age
• Ethnicity
• Disability

In job advertisements, never:

• State time-specific experience requirements
• Imply an age-specific company culture
• Screen or eliminate candidates based purely upon immigration status

For further guidance on this area of UK law, I can recommend Jen Argent, to whom I also owe credit for sanitizing this article.

The first casualty when war comes is truth. – Sen. Hiram Johnson (R., CA), 1918

The looming passage of the Employee Free Choice Act has the business world in a frenzy. The EFCA, if you haven’t been paying attention, would make it easier for unions to organize and reduce employers’ leverage in contract negotiations.

Businesses act like sentries on the parapets of ancient castles, warning of the approach of barbarian hordes. Consultants, trade associations, and labor lawyers presage unions gaining strength and forcing onerous agreements, obliterating productivity and adding costs. All of this comes, of course, at the worst possible time from a business perspective.

Unions, on the other hand, see EFCA as leveling the playing field. Management has used the current certification process to its advantage, they argue, intimidating workers and pressuring them to reject union certification in secret ballot elections. Given that union membership is at historically low levels — just 7.8% of U.S. workers currently belong to one — the portrayal of management as having the deck stacked in its favor is believable.

The truth probably lies somewhere in the middle. What is undeniable, however, is that the EFCA will make organizing easier for unions (which is why they support it so enthusiastically). And that has employers wondering what the implications are for them.

How Much Is Your Organization at Risk?

The first question most employers ask is whether or not they are at risk of being targeted by a union. When you look at it from the unions’ perspective, some employers are better targets than others, and they will focus their efforts accordingly. Manufacturers, ironically, are not top targets because labor has learned that such firms can pack up their machinery and move to places less friendly to unionization.

Thus, place-based employers — health care, hospitality, retailing, retail banking, and government — are ideal targets for organizing. One cannot uproot a hospital or a restaurant to avoid unionization efforts without losing its customer base. Some businesses require that you have facilities where your customers are, even in today’s online world (it’s difficult to deliver a baby over the Web).

Employers in industries that have lots of low-paid hourly workers are also prime targets because such employees often have issues about pay, working conditions, or schedules. Health care, hospitality, and retail show up in this category, as well.

Organizations with records of poor employee relations are at greater risk for obvious reasons. Workers who have grievances — real or imagined — are much more open to the union’s case for collective bargaining and the EFCA will make it much easier for such people to act out their frustrations.

How Should Employers Prepare for EFCA?

Passage of EFCA is not certain, but with a pro-labor Congress and President the odds of it becoming law are better than they have been in a generation. So employers should prepare now for a new labor marketplace where unions will have more clout. Here are three things employers should do at a minimum to prepare themselves in advance:

Objectively assess the state of your employee relations. It is hard for employers to get an accurate fix on employees’ sentiments because workers are reluctant to criticize for fear of retribution. This is especially pronounced during tough economic times. Executives also tend to see themselves as far better at managing than their employees do. So it is important to assess the health of your relationship with your employees through objective measurements such as employee engagement or satisfaction surveys, exit interviewing those who quit to find out why, and monitoring external blogs and forums for comments about your workplace by current or former employees.

If it is apparent that you have points of chronic conflict, you need to address those quickly to reduce tension and relieve frustration.

Educate front-line supervisors and managers about the EFCA and its implications. There is truth in the old saying is that, “people join a company but quit because of a manager.” How your managers and supervisors work with their employees sets the tone for your organization and determines how well management and the rank and file get along. If the EFCA passes, you will also need managers and supervisors to be vigilant for signs of organizing efforts at your workplace. Nearly every expert advises strongly against union-bashing or fear-mongering: you are far better off clearly and dispassionately laying out the facts to your workers as to what the impact of unionization will be and letting them decide. If you have supervisors or managers who have significantly higher than normal turnover rates, you need to evaluate their ability to lead and inspire their people; if someone is unable to get people to do their jobs without threats or coercion, they shouldn’t be in such a role.

Communicate, communicate, communicate. Employers should communicate frequently and honestly in any case, but now more so than ever. The more those communications are in the form of dialogue — brown-bag lunches, town hall meetings, lively intranets, blogs, and wikis — the better your relationship with your employees will be. If a work site is targeted by an organizing effort, employers that already have open lines of communication will be able to present their side of the situation more proactively. If you react to the organizing effort, you will appear defensive, and workers will suspect ulterior motives. Indeed, a recent study found that people trust the opinions and attitudes of “people like me” twice as much as they do corporate CEOs. The sooner you can establish a positive relationship with your workers that encourages healthy two-way dialogue, the better off the organization will be regardless of what happens.

How Much Will It Cost?

New initiatives are hard to fund while organizations are cutting back. The question for employers, though, is whether the cost of preparation is outweighed by the cost of a union bargaining on behalf of its employees.

A review of the data about the impact of unions on business performance is fascinating. More recent data generally comes from the unions and their allies showing that worker productivity is, if anything, improved after a union is in place. The fact that contrary data is usually 20 or more years old shows how blasé business became about unions. Most research, though, agrees that labor costs will increase once an organization has collective bargaining in place. One study pegged the differential at 30% higher costs for union shops versus open ones.

Some may counter that if unions push wages higher, that will mean fewer jobs as employers try to keep labor costs in line with shrinking revenues. But if you are a service provider, that also means lower customer satisfaction and reduced sales because wait times increase and the customer experience degrades as harried employees try to please annoyed shoppers, guests, or patients.

Improve Your Odds of Success

The three actions recommended above need not be very expensive, and certainly they pale in comparison with significantly higher labor costs across the board. Some ideas can be implemented using existing staff and systems (schedule brown bag sessions using e-mail, for example). Any effort, though, will require the strong commitment of your leadership and your managers. If they are unwilling to take the time and make the effort to engage with your employees, you are probably too late to make significant change anyway.

You can take the chance that the EFCA doesn’t pass, and hope that all of this goes away. But if you bet wrong the biggest loser will be HR, which will be blamed for what happens next.

Happy Monday, everyone!

But what else does an Obama administration mean for the workplace and for the recruiting world?

A significant piece of legislation with great potential to impact the American workplace is the Employee Free Choice Act, which amends the National Labor Relations Act. Maybe you don’t recruit for or work in a unionized organization — and as a result, you’re thinking, so what? Should you even care about this? And will it affect you? Yes and yes. If passed, the EFCA would make it easier for your workplace to become organized. And given the legislation has received near-unanimous support from Democrats in the House and Senate both, and full support from President-Elect Obama who pledged to enact it, the EFCA should be on your radar.

The EFCA Basics

About 8% of the American private sector workforce is currently unionized. If the EFCA passes, it’s estimated that the number would increase to nearly 20%, according to the Campaign for America’s Future, as the bill would make it easier for a workplace to become organized.

Under current labor law, when a third of workers have petitioned to unionize, a federally-authorized secret ballot vote takes place. After a campaign period, individuals have the opportunity to choose whether or not to unionize, and the vote is held in private (much like how you vote in any American election) so that each can make their decision free from any pressure, scrutiny, or intimidation by peers.

Under the EFCA, the right to a confidential vote is eliminated and a union would be certified the moment it collects a majority of signed “authorization cards.” This process, known as card-signing, or card-check, not only eliminates the union organizing campaign period, it denies every worker the right to a private vote on joining a union. These changes are the most widely criticized aspects of the bill, with civil rights activists like Al Sharpton coming out against the EFCA, as individuals are stripped of their voting rights and in effect are being coerced into a decision.

Another damaging aspect of the bill is its binding arbitration clause. All first-time contracts would have to be negotiated within 120 days; if agreement isn’t reached between the union and employer, the contract would be sent to federal arbitration where a binding contract would be handed down — and many pro-business advocates argue that most federal arbitrators come from union backgrounds and are generally not very management-friendly. Having to negotiate a contract with 120 days is also seen as an unrealistic requirement given that a first-time contract usually takes an average of one year to be negotiated. The process of coming to agreement is trying, and current labor laws do not require that an agreement even be reached when a union and company are negotiating a contract. They only require that a union and company bargain in good faith.

Recruiting Impact

If we use simple math and say 10% of the workforce is currently unionized, let’s also say that 10% of our recruiting colleagues recruit in a unionized environment for positions covered by a contract. I’ve been part of that 10% in the past and know firsthand the fun it is to read a collective bargaining agreement to determine how you can or cannot recruit. Most recruiting guidelines for a unionized environment are all rule-driven and often restrict your ability to secure the best talent for your organization. Is there an internal job posting requirement? What are the job posting dates you have to follow? Does the recruitment have to be restricted to just the bargaining unit? What preference do bargaining unit members get over other internal candidates, or over external candidates? Can you even pursue external candidates?

And once you get those rules out of the way, the contract also dictates compensation, and the focus is on tenure rather than performance. Even rarer are any trace of incentives to get high-performing candidates in the door. It’s a difficult recruiting environment to operate in.

Managing and motivating talent in a unionized environment is also difficult. Sure, they may have guaranteed cost of living increases, year after year, but that’s generally it. Workers generally get nothing for going above and beyond; innovation is not rewarded; and A-players, regardless of the industry, have trouble swallowing that pill. Even if you can overcome the recruiting obstacles and attract A-players, the stars will grow stagnant quickly once surrounded by endless mediocrity.

Looking Forward

The EFCA will likely be voted on in the House and/or Senate by the end of the first quarter of 2009. In the meantime, we can expect to see lobbying efforts on both sides of the issue ramp up — and it’s an interesting debate that’s unfolding. The economic climate makes it increasingly ripe for the EFCA to pass, as the American workforce worries about the security and stability of their jobs. The promise of hope from unions could be music to their ears as labor forces like the AFL-CIO use messages in support of the EFCA, saying that it will help America’s working families who are struggling and build a better life, or greedy CEOs are too powerful, but workers in unions can bargain for a better life. But on the flip side, you have strange bedfellows like the pro-business voice of the Chamber of Commerce and civil-rights activists like Al Sharpton both coming out against the bill.

I find myself growing concerned about the EFCA’s passage but perhaps am more concerned with the lack of discussion in the business community about the matter. I continue to encourage my colleagues and communities to educate themselves on the matter — and you can do the same by sharing this article as a starting point. You can also choose to take action by getting in touch with your elected officials and sharing your opinion of the EFCA with them. Or for those involved in the blogging community, you can get in touch with me if you’d like to write on the topic during a week-long blogging action week planned for February.

It’s a historic time as Obama prepares to take office — and change is certainly in the air in Washington as several pieces of employment law have already been voted on by our new Congress. The EFCA will certainly be up to bat soon — but is this the kind of change we were asking for? Or are there other issues affecting the workplace or our industry that you’re concerned about as Obama takes office?

If “Reevaluate background screening program” isn’t on your list, add it now because you can bet that should the EEOC come calling it will do it for you.

Ever since 2006 when the Equal Employment Opportunity Commission adopted a series of changes that have come to be known as the “Systemic Initiative,” EEOC field offices have been aggressively pursuing cases where one or more forms of discrimination permeate a company’s hiring practices. These can be as overt as the $20 million settlement last month against LA Weight Loss Centers for refusing to hire men. Or they can be as unintentionally discriminatory as refusing to hire anyone with a violent criminal record.

This latter instance was the heart of the leading U.S. case on background screening, El v. SEPTA.

Douglas El was fired as a driver of the mentally and physically disabled when a criminal check turned up a juvenile murder record. His attorneys sued showing that the policy has a disparate impact on Blacks who are more likely to have a record than whites. The Third Circuit Court of Appeals in Philadelphia upheld the employer in the case, but recruiters should take little comfort in that decision.

“The third circuit dropped lots of hints,” says EEOC attorney Carol Miaskoff, that it would have ruled differently, but for a lack of expert witnesses on the part of El’s attorneys. They chose not to counter testimony by noted criminologist Dr. Alfred Blumstein that a person with a criminal record is more likely to recidivate, even if, as in El’s case, the conviction was 40 years old.

So why should this prompt a new year’s review of hiring practices?

Arthur Cohen

This means that it’s not enough to simply adopt a policy against hiring felons, say, or someone with a poor credit history or with a less-than-honorable military discharge. Instead, says Merrily Archer, a former attorney with the EEOC who is now in private practice with Fisher & Phillips in Denver, employers need to ask “Is there any nexus between the criterion and the job we are hiring them to do?”

Merrily Archer

While the policy seems logical enough, is it really? Why pick five years and not four or two or seven?

Cohen, himself an attorney and vice president of operations and general counsel of background screener Concorde, Inc., counsels that employers “ought to be considering how they would articulate, if they are ever asked, why they chose the policy they did, on what research was the policy based, and why was it structured the way it was.”

The basis for a particular need not be unassailable, if that were even possible. Instead, said the federal court in the SEPTA decision, “We require that employers show that a discriminatory hiring policy accurately — but not perfectly — ascertains an applicant’s ability to perform successfully the job in question.”

How did SEPTA, the employer, show that? By bringing in a criminologist to testify to recidivism. Had El’s attorneys brought in one of their own, many lawyers including most of the labor lawyers we spoke with, suspect the appeals court would have decided differently and sent the case back for a jury trial.

If only for that reason you should have some data to support your employment policy.

“What makes the SEPTA case so noteworthy in my opinion is that the indication is that the participation of a criminologist has relevance to the preparation of a policy involving a review of the criminal records,” says Cohen says.

Or to put it another way, if an unsuccessful candidate sues says Cohen, “By all means this could turn into a war of the experts.”

So as you go about reviewing your pre-employment screening procedures it would be wisest to test the policies in two ways: Against the EEOC’s own guidelines for criminal convictions and against the SEPTA court’s declaration that “discriminatory hiring policies accurately but not perfectly distinguish between applicants’ ability to perform successfully the job in question.”

One more thing to consider: Congress has shown an inclination recently to expand protection against discrimination. In September it passed a law that expressly overrode the Supreme Court’s narrow reading of some of the protections of the Americans With Disabilities Act.  And the new Congress is expected to approve two measures expanding the right of workers to sue for past discriminatory acts and limits an employer’s defenses to equal pay actions.

As attorney Archer suggests, “Better buckle your seatbelt and get a good attorney.”

“More workers will be defined as disabled,” says Myra Creighton, partner in the Atlanta office of labor firm Fisher & Phillips. That will almost undoubtedly mean that more workers will be requesting some form of accommodation for their disability.

Where previously a diabetic or someone with ADD whose condition is controlled by medication was probably not disabled under the prevailing court decisions, now the amendments make clear that they probably are. The amendments loosen up the definition of disability and eliminate consideration of the effect of medication, prosthetics, hearing aids, and the like. That means a person is to be considered disabled whether or not any form of treatment or corrective device (with the exception of glasses and contacts) is used to control or ameliorate the condition.

However, for recruiters and hiring managers, the impact is likely to be more subtle.

Changes may need to be made to job descriptions and in the application and interview environment. There is some thinking that the nature of the post-offer, pre-employment physical will have to be altered to disregard the effect of medical mitigation.

“People ought to have better job descriptions,” counsels Creighton. Most descriptions already take into account the physical requirements of a job, such as the ability to lift certain weights. But too few, says Creighton, take into account the mental and emotional requirements.

“A lot leave out the mental demands that some jobs make,” she says, pointing to supervisory positions where a manager has to relate to employees. Certain types of mental conditions can negatively affect the performance of a supervisor.

She also suggested that more job candidates may now be eligible to request an accommodation in the interview process. Those employment kiosks so popular in home improvement centers, large retailers, and others might have to be modified or alternatives offered to accommodate candidates who request them.

In fact, in a December webcast, the Association of Corporate Counsel used the example of a candidate with ADD requesting a quiet place to fill out a job application. “Do you have to accommodate?” the presenters asked. The answer is yes.

But how many on-site managers know that — or how — an accommodation is to be made?

Creighton says all the old rules about what questions can and can’t be asked during the hiring process still apply. “Those haven’t changed.”

Now, because more candidates can be considered disabled and partially because jobs are tight, Creighton urges recruiters to be especially vigilant about ensuring every question they ask and every requirement in the job description is directly related to business necessity.

While there “aren’t a ton of failure-to-hire cases,” Creighton says, “Some people may view this (the ADA amendments) as an opportunity.”

• 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.