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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

keep reading…

Recruiters and employers want to “do the right thing” when it comes to using Facebook, LinkedIn, and Twitter. But what’s the right thing? That’s what they’re not sure of, says Keith Watts, an employment law attorney with Ogletree Deakins.

We talk about this challenge on the podcast below, including:

• How to handle photos you see on Facebook
• The Catch-22 of hiring the “most qualified” candidate
• The legal risks of inconsistency in the hiring process

keep reading…

You may have read about the big case against Wal-Mart, where to sum it up, the Supreme Court will decide if a gender-discrimination lawsuit can be brought as a class action, one that’d involve more than a million women.

On the podcast below, Gerald L. Maatman, Jr. of Seyfarth Shaw LLP, talks about what this case could mean to recruiting departments when the Court’s verdict arrives. Mattman works out of the firm’s Chicago and New York offices; one of his specialties is defending employers sued in employment-related class actions. keep reading…

As President Obama weighs a sweeping new Executive Order that would establish a coordinated “government-wide effort to promote diversity and inclusion” throughout the federal workforce, the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 has already formalized diversity efforts within the financial regulatory sector.

Such developments have led a growing number of experts to conclude that big government may be setting a new benchmark for big business in the United States — at least when it comes to diversity in the workplace. Consequently, now may be the right time for corporate recruiters to start removing potential barriers from the hiring process.

That’s not necessarily a bad thing either considering that the then-Nextel Communications Inc. reported a savings of nearly three times as much in turnover costs as it spent on a $1.2 million investment in diversity training back in 2003.

Largest Employer

“You can’t get around the fact that the federal government is the nation’s largest employer,” observes Eric Peterson, manager of diversity and inclusion at SHRM.

Peterson acknowledges that there is likely to be a ripple effect in corporate America from diversity activities in the federal government. “When smart organizations see this happening in the news and they see President Obama signing a lot of these policies into effect, they are going to take notice and say ‘this is the direction the country seems to be going in and we better respond to that.”

Allen B. Roberts, a member of the law offices of Epstein, Becker and Green and Managing Shareholder of the New York office, agrees the federal bureaucracy is setting the new best practices for businesses to follow with regard to diversity.

“In the instance of the (Dodd-Frank) statute and the new Executive Order, what you’ve got is not only someone out there saying ‘this is the new best practice,’ but also you’ve got some teeth with it,” according to Roberts, who co-chairs his firm’s Whistleblowing and Compliance Subpractice Group.

Interagency Council on Diversity and Inclusion

According to a draft of the President’s Executive Order obtained by The New EEO Source, the government plans to create a high-level Interagency Council on Diversity and Inclusion. Its mission would be to develop a Government-wide Diversity and Inclusion Strategic Plan. The Council would be co-chaired by the director of the Office of Personnel Management and the director of the Office of Management and Budget.

It would consist of the heads of 19 executive departments and agencies — including many of the government’s largest employers — and such other departments and agencies as the President or chairs may designate or invite.

“Our nation derives strength from its commitment to equal opportunity for all and from the diversity of its citizenry,” the draft states. “We are at our best when we draw on the talents of all parts of our society, and our greatest accomplishments are realized when diverse perspectives are brought to bear to overcome our greatest challenges.”

“For the federal government as an employer, a commitment to equal opportunity, diversity, and inclusion is critical. Securing and maintaining a diverse, qualified workforce is one of the cornerstones of the merit based civil service,” the draft states.

Dodd-Frank

Section 342 of Dodd-Frank is specifically aimed at financial regulatory agencies, and extends to “all business and activities of the agencies at all levels, including in procurement, insurance, and all types of contracts.”

It charges agencies to develop standards for increased participation of minority-owned and women-owned businesses in the programs and contracts of the agency, including standards for coordinating technical assistance to those businesses.

Section 342 specifically applies to agency directors of the Department of the Treasury, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, each of the Federal Reserve banks, the Federal Reserve Board, the National Credit Union Administration, the Office of the Comptroller of the Currency, the Securities and Exchange Commission, and the Bureau of Consumer Financial Protection, according to Roberts.

E. Fredrick Preis, Jr., senior partner and head of the labor and employment section at the Lemle & Kelleher law firm, says private financial institutions are concerned by the provisions of Section 342. “Most of them already have diverse workforces to some extent. It’s certainly brought home to them that they need to continue to do so,” says Preis, whose firm represents management.

Recruiters Need Specific Goals

Organizations that follow the government’s lead on diversity will have to be very specific in defining program goals and expected outcomes — preferably up front, say experts. This should include keeping track of who is hired for a particular job and who is not hired. It should also include a method of tracking the source that was used to find each candidate and some method of measuring the effectiveness of various sources in achieving specific diversity goals.

A federal appeals court Wednesday upheld the conviction of former Monster president and COO James Treacy, but ordered the trial court to recalculate part of the $6.3 million it ordered him to pay in forfeitures.

Treacy was convicted in May 2009 of stock options fraud in connection with the granting of backdated Monster stock options. He was sentenced in Sept. 2009 to two years in prison, fined $6.3 million and the same in forfeitures. (The amount was determined to be how much Treacy profited by the backdating of stock options he was granted.)

He appealed his conviction and challenged the trial court’s calculation of the restitution. The appeals court ruled against him on all but one issue: how the judge figured the forfeiture amount for 75,000 options with a grant date in December 1998. The revisions ordered by the appeals court will result in a somewhat smaller total amount of forfeitures.

Treacy is the only former Monster executive to receive prison time in connection with a stock options backdating scheme that netted the recipients — including Treacy — millions. Andrew McKelvey, who founded TMP Worldwide, which owned Monster, and was the company’s CEO and chairman, was accused of stock fraud, but because of his terminal pancreatic cancer, was allowed to defer his prosecution after he admitted his guilt in court. McKelvey died in November 2008.

About that Anna Rodriguez, HR head of the fictitious Magnus Group. She was a busy lady.

Besides allegedly scamming SuccessFactors, she roamed the aisles of last fall’s HR Tech show, stopping to chat up the folks at the Sonar6 “unbooth.”

Mike Carden, Sonar6 co-founder, called from headquarters in New Zealand to say the company had a few contacts with Rodriquez, the first at the tech show in Chicago. keep reading…

Update: SuccessFactors has issued a statement noting that both sides in the suit have stipulated to a restraining order prohibiting Halogen from disclosing or using any of the information it may have gained via the Magnus Group.  SuccessFactors President Doug Dennerline said:

Although we would rather devote all our energy to building great products and providing great services to our customers and more than 8 million users, we have a responsibility to take action to protect SuccessFactors, including our employees, customers, investors and partners, in the face of such a blatantly fraudulent and unethical attack. We plan to vigorously pursue this lawsuit.”

Fool me once, shame on you. Fool me twice, shame on me.

That adage came to mind this weekend after the news broke that SuccessFactors is suing Halogen Software alleging it had been scammed by its Canadian competitor in the HR software business.

Whether or not the claims made by SuccessFactors are true, it’s the second time in the last two years the San Francisco Bay area vendor has gone to court alleging it was pimped by a competitor.

In March 2008 it sued Softscape (since acquired) over a disparaging PowerPoint that was supposedly created by an unhappy SuccessFactors’ customer and circulated to clients of the company.

In the latest legal battle, the technology news service IDG reported Friday that SuccessFactors claims Halogen created a dummy company with a sham website in order to trick SuccessFactors into providing detailed company and product information, including confidential pricing information. keep reading…

Government background checks of federal contract employees are constitutional, a unanimous Supreme Court ruled Wednesday.

“Reasonable investigations of applicants and employees aid the government in ensuring the security of its facilities and in employing a competent, reliable workforce,” said the opinion written by Justice Samuel Alito. That the workers who sued the government on privacy grounds were contractors and not civil servants was a formality and all but irrelevant, Alito wrote.

The case was brought by 28 scientists and engineers at NASA’s Jet Propulsion Laboratory near Pasadena  The sprawling facility is operated by the California Institute of Technology. The plaintiffs are employees of Caltech. keep reading…

For several days now, Gawker has been shining a light on hiring practices at American Apparel, a 10,000-worker garment manufacturer where “employee relations” is, apparently, a double entendre and provocative ads are the norm.

Over the last few days, Gawker reported that the financially troubled, but oh-so-hip firm has a hiring and promotion policy that has more to do with high cheekbones than it does with almost anything else. For instance, Gawker wrote about a “full body head to toe” photo requirement for employee referrals, espoused during a manager conference call in May.

A follow-up article, based, Gawker said, on internal documents and photos, offered a closer look at just what the company wanted in the way of candidate photo submissions. An accompanying extract, presumably from one of the documents, offers such detailed photo instructions as “Include a close-up of face…” and “We need to clearly see everyone’s hair, color length, and style.” keep reading…

Imagine you are a coach. It could be in the business world or on a playing field. What can you control: how the game is played or the final score? If you said final score, then you have probably never coached. If you said how the game was played, you probably know good skills almost always lead to good results. That’s why professionals never stop drilling, practicing, and learning. Focusing primarily on numbers is generally short-sighted and ineffective — like saving time by leaving for work at the last minute. keep reading…

Yikes! Here it is two days before Valentine’s Day and not a romance story in sight on ERE.

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.” keep reading…

U.S. EEOC Assistant Legal Counsel Carol Miaskoff brought up a few points in her Florida presentation (see video, below) that raised questions among ERE members.

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. keep reading…

In what amounts to a formality, the U.S. Department of Homeland Security has put the last nail in the coffin of the “no match” rule, officially rescinding the much debated, but never implemented proposal.

keep reading…

As employers increasingly turn to RPOs they need to make sure the firm they hire is well grounded in fair hiring laws, because they could be held liable for the firm’s violations.

“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.” keep reading…