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Author: Rick Bell

Posted on December 11, 2019December 12, 2019

Vote Now for the Worst Employer of 2019 — Polls Are Open

Jon Hyman The Practical Employer

All year long, I’ve been sharing examples of the worst employers in America. My goal? Compile them at the end of the year and then turn it over to you, my readers, to pick the worst of the worst.

Today is your opportunity to help pick the Worst Employer of 2019.

I’ve narrowed this year’s preliminary list down to my choice for the top 10 naughty employers.

Voting will take from today until December 17, at 11 p.m. You will be able to vote for up to 3 choices.

I will then tally the votes, and, announce the highest recipient as the very worthy winner of the Worst Employer of 2019.

Vote, share this post with your friends, colleagues, and social networks, and most importantly, learn something from the mistakes of these 10 very cringe-worthy nominees.

Posted on December 9, 2019June 29, 2023

When You Tell a Job Candidate, ‘You’re Probably Not Going to Like This Job’

When hiring is brisk, it’s easy to rush the process and end up with mismatched employees. So it’s important to know what motivates them — not just how they behave, but why they do what they do. With today’s labor market, finding the best match for performance and retention pays for itself in retention alone.

A majority of Fortune 500 companies use assessments for selection and companies of all sizes can benefit from emulating the practice. To ensure the best talent selection and long-term match, HR should go deeper than personality types and behavior.

With assessments that determine what motivates candidates, HR can be more assured in choosing — or passing on — any individual.

“Selection is very different than just hiring,” said Brett Wells, chief science and consulting officer at Talent Plus Inc. “Selection means you’re making a sound judgement based on validity and science, based on what’s the very best in a role or an industry and how they will respond versus what you think your gut reaction should be. It’s predictive.”

It’s a Good Time to Be Choosy

“People can answer interview questions very well,” said Alison Nolan. “People are fantastic at answering interview questions, but it doesn’t always tell you the truth.”

Nolan is HR partner for the public health NGO, FHI 360. Previously, she did the same job with Volvo Group Trucks. With her 18 years of talent acquisition experience, she recommends an assessment-based hiring process.

“With an assessment, if they’re trying to fake it, it shows up,” said Nolan. “It’s very clear if they’re trying to skew the answers. If you’re honest it just gives you so much more insight. It saves the employer and the employee.”

In Nolan’s experience, only about 25 percent of employees who are put on a performance improvement process end up keeping their jobs. So why not make it a goal to avoid performance improvement interventions?

Right now, two competitive factors make it more important than ever to assess and understand employee motivation in hiring so great performance is the norm:

  • Near full employment. With full employment, talent acquisition is more about who you don’t hire than who you do hire, because you want to be selective and find people who will thrive in your organization. And once they’re hired, retaining those employees also becomes a competitive necessity in a tight labor market.
  • Career trends. People have become more selective about what jobs they take. Once upon a time, job seekers considered just getting a job a societal responsibility. Today, they are more attracted by intrinsic factors — in other words, corporate culture and corporate responsibility — than the need to simply find a steady income or a job for life.

Personality assessments that identify motivation can make all the difference in matching candidates with the jobs in your organization.

For Wells, who researches and builds assessments, carefully matched talent has never been more important for retention.

“With a tight labor market for candidates, the world is their oyster right now and ‘fit’ is key for retention,” said Wells. “If they don’t have that fit for the role or the organizational culture, they will leave. If they’re in a role where they’re not getting that intrinsic satisfaction they’re at risk for being disengaged and, again, at greater risk for leaving.”

Finding a Motivational Match

When you’ve done the work to accurately assess candidates, you can honestly say to those who aren’t a match, “You’re probably not going to like this job.”

How come?

You can answer, “Well, you’ve got the work ethic and the skills to do the job, but after a year, you’ll be exhausted because this job is all about engaging with clients daily in a strictly established corporate structure and you’re more motivated by thinking outside the box and coming up with new ways to accomplish tasks.”

On the other hand, for the candidate who assesses as a good fit, you can offer the job with assurance and negotiate as necessary to get them on board: “I really think you would love working here.”

Nolan has seen how this can be a positive experience for people who are not hired as well as the company.

“They get to hear why they didn’t get selected and they get that review,” said Nolan. “They have something tangible to walk away with. And sometimes, we say, ‘Hey we have this other position where you’d be a great fit.’ ”

You’ll know this because you’ve used a scientifically valid instrument that goes deeper than simple behavioral traits to find out things like:

  • Do they like to develop their own way of working or do they prefer to have it laid out for them in a prescribed manner?
  • Would they rather help others succeed or do they prefer monetary incentives?
  • Can they focus on their job with no environmental distractions or do workspace aesthetics energize them?

There are no right or wrong motivations. It’s all about congruency between what your organization needs and what it can offer the candidate.

When you assess a person’s motivation, you gain a deeper understanding of them so you can either lead them into a fulfilling and satisfying position or honestly wave them off, so they don’t take a job that will ultimately frustrate them and send them looking elsewhere.

“This is where that motivational piece comes in,” said Wells. “We often see potential wasted because they’re in roles spending time just doing things that they’re excellent at, but they don’t necessarily enjoy it.”

For Wells, it’s about talents versus strengths.

“A strength is something I’m good at, but I might not enjoy doing it, e.g., balancing a checkbook,” said Wells. “A talent is something I have the potential to do with excellence and is something I’m going to enjoy doing.”

The Perils of Using Gut Instinct

Outside of HR, not all managers are believers. Or maybe they’re just not aware.

“With some hiring managers, it can be them saying, ‘Okay, I want this person’ even when it didn’t make sense from the assessment to take that person,” said Nolan. “And nine times out of 10 they would end up on a performance improvement plan since they could not do the job, because they were not motivated by what it took to do the job.”

The best way to bring hip-shooting hiring managers into the fold of scientific talent selection is to give them the assessment that’s being used, including the feedback session. They’ll see how in-depth and revealing it is, firsthand, and they’ll be inspired by what can be achieved with a more careful hiring discipline.

Nolan has worked with managers who have a certain feeling and until they’re proven wrong — and it could be a hiring mistake that ends badly and could be costly — the task becomes how do you convince a hiring manager.

“I gave my hiring mangers the assessment and told them to take it,” said Nolan. “With them taking it, it was an eye-opener. Like someone peeking inside of you. They do it themselves and see how accurate it is.”

 Why Touchy-Feely Matters

Assessments differ, but terms like “harmonious” and “altruistic” are common. This may strike old school hiring managers as a little too soft-skill or “touchy-feely” to be practical.

What does it matter if a worker cares about the number of windows and art installations in the office? Or if they’re indifferent to status and recognition?

Plenty, according to most science on the subject, but it’s also basic psychology. People function at their best when they’re at ease. If an organizational structure or a particular job aligns with motivational preferences, the employee will be more comfortable and more able to do work in a way that gives them fulfillment.

People need to be able to be themselves at work. You can fake it for a few months in a mismatched position, but not for long.

And outside-the-box thinker isn’t going to be happy if they have to support the status quo. A person who puts himself first, will burn out in a customer service job where altruistic motivation is more valued. An employee who is highly receptive to new ideas won’t fare well in a position that demands adherence to a standard process.

A motivational assessment gives you a reliable picture of what situations are best for any job candidate.

Behavior is easy to assess. If you’ve been in talent management or training for a while, you’re probably pretty good at determining a person’s way of doing things without an assessment and through good interview questions.

Motivation, however, is deeper and you’ll need a sophisticated assessment instrument to divine it.

Motivation as a metric goes back to the work of Eduard Spranger who identified six types of motivation: theoretical, utilitarian, aesthetic, social, individualistic and traditional. Today’s motivational assessments adapt this taxonomy with more workplace-specific terms.

First Step: Assess the Job

Knowing a person’s motivational make-up won’t help if you don’t know the motivational realities of your organization and the specific jobs. So, it’s important to document the chemistry of your company first.

What is the work environment like? What are the workday demands — strict office hours, telecommute, work from the field? What are the job categories? People focused? Process focused? Creative driven or analytical?

Doing this homework will allow assessments to work as talent matchmakers.

“At Volvo, we interviewed a lot of senior buyers in our purchasing group and we benchmarked what our needs are for this job,” said Nolan.

This included requirements such as working independently, working with vendors all day long, negotiating pricing, giving presentations, and being driven by metrics in working with other people.

“Once we did the interviews, we would give the assessment and it would show us how good of a match are they for the position,” said Nolan.

Wells says it’s absolutely vital to baseline the culture before assessing talent.

“In any organization there are likely pockets of success or teams that are very successful and also pockets or teams that are struggling. With a validated assessment and research process you can discern those reliable patterns, thoughts, feelings, behaviors that drive success vs. failure in those roles,” said Wells. “So, bringing those to the forefront and making them part of your selection process will help replicate that success, selection after selection, and mitigate future failures.”

Wells recommends starting with the company’s mission statement, vision statement or a competency model, then mapping out what behaviors the company rewards, ignores and punishes. And ultimately, who gets promoted.

It’s a process of defining the culture and identifying what it takes to thrive within it. Once this is known, any number of scientifically valid assessments can be used by talent professionals to dial in the optimum profile of the candidates to hire.

Finding the Right Assessment

Once an organization knows “who it is” the process of choosing an assessment can begin.

Fortunately, the assessment industry has evolved to a point where there are many accurate, reliable and powerful instruments from which to choose.

Across the board, Wells advises that there are three basic factors to always evaluate:

1) Reliability: How consistent are scores over time and across situations. If I test you today, if I test you five years from now, am I going to get roughly equivalent results?

2) Validity: How strong is this assessment result in predicting something I care about that’s going to impact my business?

3) Fairness: To what extent do individuals from protected classes perform on the assessment compared to their majority group counterparts?

Nolan has a couple of preferred assessments and both have multiscience features that include what metrics of what drives the candidate, along with a DiSC component, and have been proven over time.

It’s always been important to match employees with positions that suit their personalities. However, now it’s more of a competitive advantage than just an employee satisfaction exercise.

In the current talent market you can afford to be more selective, which will pay off in worker retention.

As younger generations redefine why we work, there’s a little more care and feeding of talent we have to accept as employers.

Matching talent with positions by motivation helps assure success on both fronts. 

Posted on December 5, 2019June 29, 2023

Does It Violate the ADA to Work an Employee in Excess of a Work Restriction?

Jon Hyman The Practical Employer

Rita Morrissey is a licensed practical nurse who worked for 15 years for The Laurels of Coldwater, a skilled nursing and rehabilitation center.

In 2012, she injured her back outside of work and submitted a note to her employer from her primary care physician limiting her to no more than 12 hours of work per shift. Coldwater refused the accommodation, telling Morrissey that it would not accommodate any medical condition that did not stem from a work-related injury.

Over the next three-plus years, Morrissey worked more than 12 hours eight different times, but it does not appear she was mandated to do so. Indeed, on each occasion, she worked no more than 15 extra minutes.

Morrissey’s situation escalated in January 2016, when Coldwater mandated her to work a 13.5-hour shift. Morrissey testified that she reminded her manager about her 12-hour work restriction, but the manager responded that she had “no control” over the situation. Five days later, Coldwater management again told Morrissey she had to work more than 12 hours, this time a 16-hour shift to cover for another nurse who had called off from work. Morrissey walked off the job and never returned.

In Morrissey v. Laurel Health Care Co. (6th Cir. 12/3/19) [pdf], the 6th Circuit concluded that Morrissey had presented more than sufficient evidence to overcome her ex-employer’s motion for summary judgment on her failure to accommodate claim.

Viewing the evidence in the light most favorable to Morrissey, it shows that: (1) Coldwater had a blanket policy of denying accommodations for all non-work related disabilities, (2) Coldwater knew that Morrissey was under a twelve-hour work restriction, (3) Morrissey requested an accommodation, (4) Coldwater forced her to work beyond that restriction on January 31, 2016, and (5) Coldwater attempted to do so again five days later. On these facts, Morrissey’s overages from 2012-2015 are inconsequential. But, Coldwater’s argument improperly ignores the fact that it forced Morrissey, a disabled employee, to stay and work in excess of her physician instituted medical restriction—and attempted to do so again five days later. The record shows that Morrissey asked Coldwater for an accommodation due to her disability, and Coldwater did not accommodate her. She was not required to establish anything more for her claim to ripen.

What can we learn from this decision?

    1. An employer’s obligation to provide reasonable accommodation under the ADA is not limited to work-related injuries. The ADA’s definition of disability extends to work and non-work injuries and illnesses. An employer who refuses to accommodate an employee’s non-work injury because it’s not work-related is asking for a lawsuit.
    2. Blanket policies are risky under the ADA. The ADA calls for flexibility and reasonableness. Applying a blanket, across-the-board policy does not per se violate the ADA, but it should be done with caution and counsel.
    3. An employer violates the ADA when it requires a disabled employee to work outside the bounds of their work restrictions.
Posted on December 3, 2019June 29, 2023

The 20th Nominee for the Worst Employer of 2019 Is … the Malignant Mogul

Jon Hyman The Practical Employer

The 20th (and final) nominee for the Worst Employer of 2019 is Alki David, heir to the Coca-Cola bottling fortune and owner of several media firms.

The evidence?

This week, a jury awarded over $58 million to a female employee who accused him of thrusting his pelvis into her face, simulating oral sex, moaning and zipping up his pants and walking away saying, “Thanks, M.K.”

It’s the third massive sexual abuse verdict leveled against David just this year.

In April a jury ordered David to pay another employee more than $11 million, fired after she refused to have sex with him. And in October, yet another jury awarded another employee over $5 million for allegations that David put his hands on her throat and pushed her chair into a wall, and for telling her that she needed to get supplies for his “rape room.”

For his part, David does not seem to have learned his lesson. “This trial proves that not only is the system broken. It’s in a state of emergency.”

Quite a worthy nominee to end this year’s list.

Come back one week from today, when voting will open to name this year’s Worst Employer. I have a feeling Alki David will have a very nice showing when the votes are counted.

Previous Nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

The 4th Nominee for the Worst Employer of 2019 is… the Flagrant Farmer

The 5th Nominee for the Worst Employer of 2019 is… the Fishy Fishery 

The 6th Nominee for Worst Employer of 2019 Is … the Diverse Discriminator

The 7th Nominee for Worst Employer of 2019 Is … the Disability Debaser

The 8th Nominee for the Worst Employer of 2019 Is … the Lascivious Leader

The 9th Nominee for the Worst Employer of 2019 Is … the Fertile Firing

The 10th Nominee for Worst Employer of 2019 Is … the Exorcising Employee

The 11th Nominee for the Worst Employer of 2019 Is … the ****y Supervisor

The 12th Nominee for the Worst Employer of 2019 Is … the Disguised Doctor

The 13th Nominee for the Worst Employer of 2019 Is … the Excoriating Executives
The 14th Nominee for the Worst Employer of 2019 Is … the Horrible Harasser
The 15th Nominee For The ‘Worst Employer of 2019’ Is … The Disability Demoter
The 16th Nominee for the “Worst Employer of 2019” Is … the Shameful Wall Builder
The 17th Nominee for the Worst Employer of 2019 Is … the Mauling Manager
Posted on December 2, 2019June 29, 2023

As Sure as Today Is Cyber Monday, Your Employees Are Shopping From Work

Jon Hyman The Practical Employer

Today is Cyber Monday, the biggest online shopping day of the holiday season. In fact, it is estimated that today will be the biggest online shopping day ever, with over $9.4 billion in sales.

And, guess what? Given that most of those doing the shopping will be spending the majority of their prime shopping hours at work, from where do you think they will be making most of their Cyber Monday purchases.

Consider these statistics:

  • 68% of employees use time at work to shop online.
  • 81% of millennials shop online at work.
Should you turn a blind eye toward your employees’ online shopping habits, not just today, but across the board? Or, should you permit more open access?

I am big believer in open internet access for employees (within reason). I advocate for fewer restrictions for personal internet use at work (including Cyber Monday shopping) for two reasons: it provides a nice benefit to employees, whom we ask to sacrifice more and more personal time; and it’s almost impossible to police anyway.

We no longer live in a 40 hour a week, 9-to-5 world. Employees sacrifice more and more of their personal time for the sake of their employers. Thus, why not offer some internet flexibility both to recognize this sacrifice and to engage employees as a retention tool?

Moreover, it is becoming increasingly difficult for employers to control what their employees are doing online during the work day. Even if an employer monitors or blocks internet traffic on its network, all an employee has to do to circumnavigate these controls is take out his or her smartphone (which employees are doing anyway). By trying to control employees’ internet habits, employers are fighting a battle they cannot win. The iPhone has irreparably tilted the field in favor of employees. It not worth the time or effort to fight a battle you cannot win.

Instead of fighting a losing battle by policing restrictive policies, I suggest that employers treat this issue not as a technology problem to control, but a performance problem to correct. If an employees is otherwise performing at an acceptable level, there is no harm is letting him or her shop online from work, on Cyber Monday or on regular Wednesday.

But, if an employee is not performing, and you can trace that lack of performance to internet distractions or overuse, then treat the performance problem with counseling, discipline, and, as a last resort, termination. Just like you wouldn’t bring a knife to a gun fight, don’t bring a technology solution to a performance problem.
Posted on December 2, 2019October 28, 2019

Court Drills Company Over Bonus Pay

wage and hour law compliance, wages

Bristol Excavating entered into an agreement with Talisman Energy. Talisman paid all workers on its drilling sites bonuses for safety, efficiency and completion of work.

At some point, Talisman and Bristol agreed that Bristol’s workers were eligible to receive the bonuses; however, this arrangement was never codified. The Labor Department found Bristol should have included the bonuses in workers’ regular rate of pay for purposes of overtime compensation. In rejecting this, the Third Circuit emphasized an employee’s regular rate of pay is between the employer and employee.

Then it assessed the employer’s involvement in the bonus program: (1) whether the specific requirements for receiving the payment are known by the employees in advance of their performing relevant work; (2) whether the payment is for a reasonably specific amount; (3) whether the employer’s facilitation of the payment is significantly more than serving as a pass through vehicle. In applying the test, the Third Circuit found there was not enough clarity about the requirements or amounts of the efficiency or completion of work bonuses to require Bristol to include these bonuses in overtime compensation.

However, the terms of the safety bonus were sufficiently clear. Bristol employees knew the criteria for earning the bonus and how much they would receive, and Bristol invoiced Talisman for payment of the safety bonuses on behalf of its employees.

Bristol should have included the bonuses in its employees’ regular rate of pay. Sec’y United States Dep’t of Labor v. Bristol Excavating Inc., No. 17-3663, 2019 WL 3926937 (3d Cir. Aug. 20, 2019).

IMPACT: Employers with leased employees in the Third Circuit (New Jersey, Delaware and Pennsylvania) should audit their compensation practices in light of the new test announced in this case.

Posted on November 26, 2019June 29, 2023

Please Tell Me Why Worksite Wellness Programs Are a Waste of Time and Money

My father passed away in October 1986 from a heart attack at age 49.

That was his last in a series of major and minor cardiac events. I was 21 years old when he died. At the time I perceived my father to be old (as do most children).

Now, at age 53, it’s an odd perspective to look back at his passing and reflect on where he was in his stage of life and career and consider his outlook on the future.

Gary Cassidy

My family has a history of heart disease and my father was no exception. As an engineer for General Electric, he worked long, hard hours and traveled frequently.

Physical activity, nutrition and doctor’s visits were not high on his priority list. I call this attitude the “I feel fine so I must be fine” mentality.

He enjoyed eating the crispy skin off the Thanksgiving turkey, fat from a well-cooked steak and ladles of cream sauces — all the good-tasting stuff that was loaded with calories, fat, cholesterol and sodium.

When my father had his first heart attack, the doctors found he had extremely high blood pressure and major blockages in all four of his arteries. By that time, too much damage had been done to his heart and there was nothing they could do for him. Still, my father started eating better, took up golf, spent less time at work and focused on reducing his stress.

It’s important to remember that during my father’s lifetime, 1937 to 1986, company wellness programs did not exist. He grew up with exercise guru “The Jack LaLanne Show,” hula hoops, calisthenics, the sauna suit, vibrating belts and other early fitness trends and fad diets. Most centered on the external appearance of fitness but lacked a focus on inner fitness, the biometric and lifestyle measurements that truly determine if one is healthy.

You would think I learned something from his experience, but you’d be wrong. When I was young I felt indestructible.

I had a high metabolism and didn’t gain weight no matter what or how much I ate. The good news: I was physically active in soccer, aerobics, long-distance running, weight lifting, competitive Taekwondo and many other activities.

The bad news: my diet was significantly less than stellar. It wasn’t unusual for me to have fast food for breakfast, lunch, dinner and a late-night snack all in the same day. I inherited my father’s “I feel fine so I must be fine” mentality.

In 1993, after eight years in the Air Force, I returned to civilian life to work at a large insurance carrier, where I learned about health care claims, annual employee benefit renewals and risk management, which drive and control an employer’s health insurance costs. I began to understand that the overall health of a workforce can affect an employer’s health care costs.

I learned about the decisions that organizations must make about health insurance cost sharing, like imposing premium increases, and that employee benefits are a large part of the workforce’s total compensation. I observed how employees who do not take responsibility for their personal health can cause others who do to pay more for their own health care benefits, something that always struck me as unfair.

At age 35, I finally visited my doctor for an annual physical, and the results were not good. My total cholesterol was over 300, my HDL was low and my LDL and triglycerides were high. I was also diagnosed with hypothyroidism.

While this was an “aha!” moment, I should have seen it coming. I knew that I had a family history of high cholesterol and most men on my father’s side of the family died young from cardiac-related causes. But “I felt fine so I must be fine.”

My doctor prescribed cholesterol and thyroid medication. I began to focus on nutrition and continued to be physically active. After one year, my numbers started to improve, but even now I still have work to do. Progress, not perfection.

While conditions like these may take years to produce symptoms and can initially go unnoticed, they are still incrementally causing damage to one’s health and well-being. This is why it’s so important to focus on preventive measures to manage a disease before it has the chance to cause a major medical event.

After my father had his first heart attack, he was released from the hospital and sent home. He walked slowly so as not to raise his heart rate. One day I watched him spend 20 minutes walking up 15 steps in our house. When we lose our health it’s the simple things we take for granted that are impacted the most.

Seeing first-hand the impact of how an undiagnosed heart condition affected my father’s health helps me stayed focus on wellness. In every wellness program participant, I see someone whose life can be positively impacted.

I often reflect on what would have happened if my father’s company had a wellness program. Knowing him, he would have been one of those people who wouldn’t want to participate. Because he was too busy. Because he didn’t have the time. Because it didn’t make sense; he “felt fine.” Because he had too many other things to do. Because it was his choice how he managed his health, not the company’s.

While all of this may be true, I think that if he had participated in a wellness program, gotten his blood work done and learned about his high blood pressure and high cholesterol before he had a heart attack, he would still be here today.

So I ask you, what’s the downside of participating in a wellness program?

Gary Cassidy is the director of employee education, communication and wellness for Camden, New Jersey-based insurance broker Corporate Synergies.

Posted on November 19, 2019June 29, 2023

Avoid Political Discussions in the Workplace? Riiiiiiiight …

Jon Hyman The Practical Employer

According to a recent survey conducted by SHRM [pdf], American workers cannot hide from politics at work.

  • 42% of U.S. employees say they have personally experienced political disagreements at work
  • 44% say they have witnessed political disagreements at work
  • 34% believe that their workplace is not inclusive of differing political perspectives
  • 12% report they have personally experienced political affiliation bias or discrimination based on their political views
  • 56% state that political discussions at work have become more common over the past four years
Some will tell you that employees should avoid political discussions at work at all costs. I am not one of those people.
It’s simply not realistic to eliminate all political discourse from the workplace. Thanks to CNN, the internet and round-the-clock news cycles, politics has invaded every crevice of our existence (and it’s only going to get worse between now and 11/3/20). How can we expect employees simply to ignore conversing about these issues for the eight-plus hours a day they are at work?

Instead of banning these discussions, remind employees of your expectations regarding all workplace conversations — that they be civil, professional and respectful. And, if a co-worker violates these precepts you have the right to disengage and to go to a supervisor, management or HR to address the problem.

Political discussions need not be nasty, uncivil, or contemptuous, as long as we respect the rights of others to think differently, and hold them accountable when they fall short of this standard.

Posted on November 19, 2019June 29, 2023

A Pox on Ban the Box

I am a podcast fanatic. It’s the best way to spend time on my daily commute and to fill the speakers of my car stereo, I have an unending list of podcasts to which I subscribe.

They run the gamut from music related (“Wheels Off With Rhett Miller”), human interest (“Terrible, Thanks for Asking”), travel (“Bittersweet Moment”), and technology (“Reply All”). But my favorite is “Ear Hustle.”

“Ear Hustle” is a podcast about “the daily realities of life inside prison shared by those living it, and stories from the outside, post-incarceration.” One of its recent episodes discussed the realities and difficulties the incarcerated face trying to find employment upon their release from prison.

Bottom line? Once an employer finds out you committed a felony and spent time in prison, your employment prospects drop dramatically. And most learn of this information by an applicant checking the “Yes, I’ve been convicted of a felony” box on their employment application.

Earlier this year, the 5th Circuit Court of Appeals upheld an injunction that blocked the EEOC’s guidance on criminal background checks as unlawful and banned its continued implementation or use.

That injunction is significant for many reasons, not the least of which is that the EEOC’s guidance opined that employment applications that ask whether an applicant has ever been convicted of a felony violate Title VII on their face. Why? Because blacks and Latinos are incarcerated at a rate that is statistically significantly higher than whites.

The movement against employers asking this question on job applications is called “ban the box” — cleverly titled after the box applicants are asked to check if they’ve been convicted of a felony. Nationwide, 35 states and over 150 cities have adopted ban the box laws.

So what’s wrong with laws that are intended to give those with felony convictions in their background a chance at getting past the application stage of their employment search? The laws don’t work.

As illustrated on “Ear Hustle,” ban the box merely moves the criminal background check from the application stage to the formal background check stage. Employers that are predisposed not to hire felons are not going to hire felons. They will just ding them later in the hiring process — after the expense of a formal criminal background check. These laws aren’t changing employers’ minds or attitudes. They are just giving felons false hope.

Moreover, according to two recent studies, ban the box laws are causing more racial discrimination by improving the hiring prospects for whites, while making them worse for blacks and Latinos. The conclusion drawn by these studies is that when employers can’t see who has a criminal record, they still avoid people they think are likely to have criminal records by resorting to guesswork.

As a result, racial discrimination against black and Latino job applicants (especially men) replaces discrimination based on criminal record. In other words, banning the box doesn’t just fail to help those its intended to help, but it also might hurt anyone who happens to be black or Latino.

Thus, if ban the box laws either create a more damaging reliance on unconscious racial biases (as these studies suggest) or push the consideration of criminal backgrounds to later in the hiring process, where employers will still use them to disqualify candidates (albeit with higher transaction costs in the hiring process), why do we have them?

If ban the box laws aren’t working toward their intended results of opening job opportunities for ex-cons, then what should we do to achieve this laudable goal? I suggest a three-pronged approach:

• Job training within the prison system to provide the incarcerated with transferable real-world job skills and a certification they can provide to a prospective employers upon their release.

• Tax credits to incentivize businesses to hire these felons.

• A privilege from negligent hiring and other liabilities for employers that hire certain felons for certain positions (i.e., We still don’t want sex offenders working in schools, but they might able to work in a manufacturing facility if they are otherwise qualified and sufficiently rehabilitated).

We need something to break the cycle of crime, and that something is jobs. Stable employment and steady income will help stem recidivism and keep people from returning to crime as a means of support.

If ban the box isn’t working toward this goal, then local, state and federal governments need to abandon ban the box and look for other solutions to this problem.

Posted on November 18, 2019June 29, 2023

Gay Man Claims He’s the Victim of Discrimination Because of His Sexual Orientation; It’s the Least of His Employer’s Problems

Wesley Wernecke, an ex-employee of New York event planning company Eventique, claims in his recently filed suit that the company intentionally alienated him, ostracized him and shut him out of the business after its CEO learned Wernecke was gay.

NBC News shares the details of the allegations in Wernecke’s lawsuit.

Wernecke had just begun to work for Eventique …when [CEO Henry Liron] David began to push him out of his role … .

A week after he was hired, Wernecke’s co-workers commented on his “girly” engagement ring. When a co-worker asked if his wife wore a similar ring, Wernecke replied that his partner, Evan, did.

From that point on, tension developed between Wernecke and his co-workers and David that had not existed before, according to the complaint.

In the interim months, the complaint alleges, Wernecke was ostracized and excluded from professional meetings and office social events, passed over for assignments with large commissions and subject to discriminatory remarks.

David … would exclude Wernecke from company lunches and frequent after-work drinks with “the fellas” in his office, the lawsuit states, and at one point, David gave an account Wernecke had been working on to another employee without consulting Wernecke.

These allegations, however, are the least of Eventique’s problems. According to Wernecke’s lawsuit, David significantly cut his salary (from $145,000 to $58,000.) David’s justification (again, according to the lawsuit): so that Wernecke’s pay would be on par with “the other females in the office.”

That’s not just an admission of sex discrimination against Wernecke, but also an admission of wage discrimination against the company’s female employees.

My advice to Eventique? Get out ahead of this issue, conduct a pay equity audit as soon as possible, and adjust salaries and wages as needed. Because if I’m a woman working at Eventique, I’m interviewing employment lawyers this week.

My gut, however, tells me that if a CEO is brazen enough to (allegedly) make those statements, he’s brazen enough to take this lawsuit head on.

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