EMPLOYER ALERT - NO DIPLOMA, NO JOB?

A hard and fast rule that all job applicants must have a high school diploma can get you in trouble.  The Equal Employment Opportunity Commission has published new rules about how the Americans with Disabilities Act (ADA) applies to people without a high school diploma. Immediately rejecting someone for lacking a high school diploma could be considered discrimination. At first, this sounds like a terrifying and ridiculous rule, but it's much more nuanced than it first seems. As long as an employer is aware of the rule and how it works, there shouldn't be any issue (you don’t have to hire someone who isn’t qualified).

The rule has to do with people who did not complete high school because of some disability that prevented them from doing so. If you require a high school diploma to be hired for a job, and an applicant tells you that they were unable to get a high school diploma because of a disability, then all this rule means is you should allow the applicant to show some other evidence proving that they are qualified.

It’s still your decision who to hire, and you can choose another candidate if they are more qualified or simply a better fit for your organization. What's important though is to give everyone a chance to prove their qualifications, instead of simply rejecting an applicant out of hand solely because they don’t have a diploma.

In practice, this won't actually affect smart businesses much at all (since just allowing someone a chance to prove qualifications in other ways is a pretty minor accommodation), but it could hurt businesses who are unaware of the new rule. Luckily, you now know how this works, and so you know how to avoid getting in trouble with the EEOC.

Read more about this new rule here:

http://www.eeoc.gov/eeoc/newsroom/wysk/high_school_ada.cfm

IN THE NEWS – RESUME, JOB APPLICATION . . . . AND FACEBOOK PASSWORD?

According to recent stories in the media an increasing number of employers are asking job applicants to either provide their login information for Facebook, LinkedIn and other social networking sites, or log onto their private account during the actual job interview. Others ask the applicant to accept a “friend” request from an HR representative or a recruiter.

The following are just a few of the news articles published on this topic recently:

http://www.cnbc.com/id/46792761/page/2/

http://www.wtsp.com/news/article/246040/250/Would-you-share-your-Facebook-password-during-a-job-interview

http://www.valleynewslive.com/story/17204725/facebook-password-needed-for-a-job-interview

http://www.cbsnews.com/8301-500395_162-57400973/should-job-seekers-open-up-their-facebook-page/

Although several states are considering introducing legislation that would limit a public employer’s access to private information on social networking sites, currently there are no laws preventing an employer (either public or private) from requesting access to an applicant’s social media site – or preventing the employer from refusing to hire an applicant who says no.

What type of information are employers looking for? Many are using a social network site as a replacement for character references and a background check. An individual’s Facebook page can reveal information about alcohol consumption, use of illegal drugs, inappropriate photos, and rants about a former employer, just to name a few potential disqualifiers. An employer has every right to make a no-hire decision based on the foregoing.

However, an individual’s Facebook page (or other social network site) may also reveal information the employer legally cannot factor into the hiring decision – information, for example, regarding an individual’s sexual orientation, age, race, marital status, national origin, disability, and religious beliefs. An employer who has access to this information and then decides not to hire the candidate risks being accused of making the decision for a discriminatory reason.

The best practice is for employers to avoid the temptation to request access to an applicant’s social networking sites. Otherwise, you may get more information than you intended.

IN THE NEWS – THE BUCK STOPS HERE ON HIRING

One way to avoid claims of discrimination in hiring is to use an independent contractor or recruiter to screen and interview potential employees, right? Wrong! In a decision rendered September 10, 2009, a federal court of appeals in New York ruled that an apartment complex could be held liable for violations of the Age Discrimination in Employment Act (“the ADEA”) when an independent contractor told an applicant he was “too old” for the job showing apartments. Because the apartment complex delegated the hiring process to a third party, the apartment complex could be held liable for its “agent’s” conduct, even if it had no knowledge that the discriminatory hiring practices were occurring.

The court pointed out that this ruling only applies if the outside firm or agent is hiring applicants to work directly for the employer. You will not be held liable if an independent contractor hired to perform services for your company discriminates against its own employees.

If you do decide to use an outside firm or agent to assist you in screening applicants for a position in your company, however, you should make certain they are following EEO guidelines

TIP OF THE DAY – SAFETY IN ADVERTISING

Targeting your message may make sense in advertising, but it can signal trouble if the ad you’re placing is for an employment opportunity. Be careful not to use language that could be interpreted as an age or gender preference.

Describing the ideal candidate as a “recent graduate” or the position as “entry level” could signal a preference for a young candidate, and result in EEOC filings by older job applicants who believe they were rejected for discriminatory reasons.

EMPLOYER ALERT – USE OF SOCIAL NETWORKING SITES CAN BACKFIRE

Many employers are looking at social networking sites like MySpace and Facebook for additional information in screening job applicants. The conventional wisdom has been that searching for and reviewing these sites can provide useful information about an applicant’s judgment and character. Have they been blogging about frequently calling off work at their last job after a long night of partying? Do their photos and comments indicate a lifestyle of excessive alcohol consumption or use of illegal drugs? Have they “trashed” their previous employer online? Are they posting the sort of photographs that you would find embarrassing if one of your customers “Googled” their name as a representative of your company?

All of the foregoing is information that certainly could be relevant to your hiring decision. But when does information obtained online become “too much information,” placing your company at risk?

This issue is discussed at length by Lester Rosen, head of a California-based national background screening company, in a two-part series published in Recruiting Trends®, an online newsletter for HR professionals. Mr. Rosen cautions that privacy issues may be involved if you or your background screener access these sites by setting up a cover identity, and that in some circumstances Fair Credit Reporting Act notifications may be required by law for including review of these sites in a background investigation.

The most troubling issue noted in the article, however, is that reviewing an applicant’s social networking site may give you information about their disability, age, race, national origin, religion, sexual preference or other characteristics which of course can not be considered in making employment decisions. If you decide not to hire the individual, they may assume that you have discriminated against them based on that information. Mr. Rosen’s article appears at http://www.recruitingtrends.com/online/thoughtleadership/969-1.html

TIP OF THE DAY – 10 FRIENDLY QUESTIONS YOU SHOULDN’T ASK

A job interview is an opportunity to get to know the candidate on a personal level, and assess whether he or she will be a good fit in your organization. Often, however, friendly questions asked with the best of intentions stray into a protected area, causing the candidate to reveal information about their age, health, marital status, sexual orientation,* national origin or religion that, by law, cannot be considered in the hiring process. When that candidate is not offered the job, they may well make assumptions about your decision-making process that are completely incorrect, and you could be in the position of defending yourself and your company from allegations that the failure to hire was discriminatory.

Friendly questions that seem harmless on their face but can get you into trouble include the following:

1. River City, huh? My cousin went to high school there. What year did you graduate?
2. So, you’re new to the area. Do you need any help finding out about schools or churches?
3. I see from your resume that you’ve got over 30 years experience. How long are you planning to work before you retire?
4. You got married recently – congratulations! Are you planning to have kids?
5. That’s a very unusual name. What nationality is that?
6. Some of us are on a company softball team –I bet you’d be a great addition. Could we count on you?
7. Being here on time is important to us. As a single parent, do you think your childcare responsibilities will interfere with your attendance?
8. How do you feel about reporting to a (younger/female) supervisor?
9. I couldn’t help noticing your accent. Are you from the Middle East? What do you think about what’s going on over there?
10. Would you be relocating here yourself, or do you have a spouse or significant other who’d be coming with you?

None of these questions are necessarily asked with bad intentions. Each of them, however, has the potential for either eliciting information about membership in a protected class that would not otherwise be apparent pre-hiring, or creating the impression that certain protected characteristics are preferred over others in an employee.

By training your supervisory employees on proper interviewing, you can avoid unnecessary exposure to claims that your hiring practices are discriminatory.

*Although sexual orientation is not a protected class under federal law or Florida state law, numerous counties and municipalities have adopted ordinances which prohibit employment discrimination based on sexual orientation.

IN THE NEWS – RESTAURANT CHAIN PAYS $1MILLION SETTLEMENT TO MALE SERVERS, BARTENDERS AND JOB APPLICANTS

Hiring preferences based on gender can result in significant liability for your company, as illustrated by a recent federal court case filed against Razzoo’s Cajun Café, a Texas-based restaurant chain. As part of its image, Razzoo’s told restaurant managers to maintain an 80/20 ratio of women to men bartenders. This resulted in a low number of male servers who were promoted to work behind the bar, and low hire rates for male job applicants. Even those men who were promoted to bartender were excluded from working at the high-paying “girls only” bartending events. The company’s website depicts servers and bartenders predominantly as young, attractive women, with only an occasional male employee shown.

The EEOC filed suit under Title VII on behalf of the male servers, bartenders and job applicants, and settled the case last week for $1 million, primarily to be distributed among the affected applicants and employees. A portion of the settlement proceeds is also earmarked to establish company-wide HR policies and training to prevent future gender-based discrimination.

The lesson to be learned from this case is that efforts to create a marketing image do not excuse excluding employees based on gender. The same principle applies to age, race, disability, religion and national origin. Caution should also be used not to bring preconceived notions about the stereotypical applicant best suited for the job into the interviewing and hiring process.