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Bigby Havis & Associates

QDear Workforce:

– Ted

Dear Ted:

    It sounds as thoughthere are two things you want to reward: first, you want the drivers to learn toidentify and pass on promising leads to sales staff. Second, you want toultimately increase the number of actual sales generated from driver referrals.You can reward the behavior and the results individually or together. Forexample, if you choose to reward separately, a potential program mightincorporate the following features:

• To increase driver awareness andactivity, conduct periodic “lotteries.” Each qualified leadsubmitted earns the driver one chance to win either cash or a prize ($25gift check, coupons for movie tickets or caps with the company logo) over acertain period of time. This rewards those drivers who consistently submitqualified leads and motivates volume.

• To reward referrals that increaseactual sales, provide additional incentives for leads that lead to newbusiness. Each referral resulting in a closed sale would produce a secondseparate award, again either cash or a prize, potentially linked to the sizeof the sale generated. This rewards drivers that identify the”best” leads – ones that lead to increased revenue for thecompany.

    Alternately, theprogram could be combined, with all qualified leads earning thesame or similar awards.

    The most streamlinedapproach to determining eligible submissions is to leave the decision to thesales staff following up on the lead. The sales staff itself also should beinvolved, either informally or formally, in determining the criteria for a”qualified” lead, as well as for providing feedback to drivers thatwill allow them to adequately pre-qualify leads on an on-going basis. Establishand communicate simple criteria, such as:

• The prospective contact and companyactually exists

• The prospective contact is able topurchase directly or influence

• The purchase of your services

• The prospect is within the territorycovered by the company and

• The prospect has a current or futureneed for your services.

    The simpler theprogram is to explain and administer, and the more focused it is on elicitingthe behavior you hope to motivate, the more impact it will have for what youchoose to invest. Although HR or another group can provide administrative anddesign support for the program, involvement and buy-in by the sales team and thedrivers will be crucial. Keep in mind as you design the program to ensure thatthe awards will not generate problems in calculating hourly rates under FLSA, orintroduce any additional tax-reporting requirements.

SOURCE: Melissa Meller, TheSegal Company, New York City, Feb. 15, 2001.

The information contained within this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or legal opinion. Also, remember that state law may differ from federal law.

In-depth interviews are decisive for the interviewer and the interviewee inunderstanding what the job requires and what the employee has to offer. Don’tmake the mistake of not selling the position to an applicant by neglecting these10 common errors.

1. Don’t be afraid to ask tough questions.

If you uncover anything during the reference checking or employment historyreview process that warrants tough questions, do not be afraid to ask about itduring the interview. It is important that you begin your relationship with anew hire on a frank basis.

2. Don’t oversell your company.

Interviewers make mistakes by bragging about how things are booming, whilenot giving specifics to back up claims. He follows this up with a pat statementlike “Since the company was founded a little over a decade ago, we’ve beenon the right path and that road is now smoother than ever.” An adeptinterviewer will lay out the strengths and weaknesses of the firm, putting themin perspective. Do not paint an unrealistic picture of your company in order tolure an applicant on board.

3. Don’t ask for information you already have.

Interviewers ask, “Why don’t you tell me about yourself? Let’s see, howlong ago did you start your current position?” This shows a lack ofinterest in the candidate since this information was obtained earlier. Theinterview should be used to obtain new information or to confirm or rejecttentative information already acquired.

4. Don’t allow yourself to be interrupted unless there is an emergency.

The interview is sometimes interrupted twice, first by a salesperson stickinghis head in the door and then by a telephone call. Too many interviewers allowthe interview to become disjointed by not taking steps to prevent interruptions.Your office door should be closed. Put calls and messages on hold.

5. Don’t talk too much.

Interviewers tell applicants, “Well, I’m sure you have a lot ofquestions about the company and the job. Let me try to anticipate some of themfor you.” This is a classic case of an interviewer who loves to hear hisown voice. At the most, an interviewer should say one word for every four spokenby the person being interviewed.

6. Don’t use the interview as your therapy.

Too many interviewers use their sessions to spout out their concerns aboutthe company. When an interviewer vents emotions in an interview, he or she mayfeel better, but may lose a prospective employee in the bargain.

7. Don’t be afraid to spell out in detail the requirements of the position.

When one applicant got a word in edgewise and asked about the specificrequirements of the job, she was brushed off with the pat answer, “Butthen, I wouldn’t be concerned about that if I were you. I’ve always believedthat if you can sell, you can sell.” It is imperative that people know whatis required of them before beginning a job. The interview is the time to outlinethe job’s requirements, as well as your criteria for evaluating success in therole.

8. Don’t gossip or swap war stories.

Many interviewers try to find familiar ground they can tread over with theapplicant. Though this might seem like a comfortable way to get an interviewunder way, inquiring about friends and relatives can get things sidetracked,wasting a huge amount of time. The interview should be devoted to obtaining asmuch information as possible in order to make a sound hiring decision.

9. Don’t put the applicant on the defensive.

There is no point in creating unnecessary tension during the interview.Knowing an applicant’s personality strengths and weaknesses is vital to makingthe best hiring decision. A speech embodying a long-held philosophy isinappropriate, but a frank discussion of the importance of detail in the job –and how she might deal with the detail aspect of the job — would beconstructive and would allow both people to make a more reasoned decision.

10. Don’t be afraid to make the interview as long, or as short, as you deemnecessary.

The final mistake commonly made is that interviews are concluded in anunnecessary rush. As interviewers notice the time, they realize they are latefor another appointment and excuse themselves hurriedly. To be effective, theinterview should make the fullest use of everyone’s valuable time. There are notset guidelines on length, so long as you clearly spell out the anticipatedlength of the interview and so long as the time is spent wisely.

From How To Hire & Develop Your Next Top Performer by Herbert Greenberg.Copyright © 2001 by Herbert Greenberg. Reprinted by permission of TheMcGraw-Hill Companies, Inc. All Rights Reserved.

Below is a sample “requirements record,” which outlines theresources, constraints, and other parameters of a project.

Project Title: The Jacksonville Company Management Information System

Project Manager: Michael James

Date: May 14, 2002

Requirement:

A Management Information System (MIS) to support a corporate officeconsisting of fifty people. The MIS will produce forms, reports, data, andanalyses specified by the Information Systems Department’s needs analysis (MISNeeds Analysis, dated January 30, 2002). The MIS will be operational no laterthan April 1, 2003.

Assumptions: The following assumptions have been made in determining theresource requirements for this project:

• Jack Smith will be assigned as the technical lead for the project

• Jean Jordan and Bill Williams will be available 50% of their time tosupport the project manager with clerical and financial assistance

• The IS department will complete their technology assessment by June 1, 2002

• This project has priority one status

Constraints:

• Given the number of competing projects at Jacksonville, the schedule can bemet only with complete functional area support of resources and materials

• A budget of $200,000 may be insufficient to support IS’s technologyrecommendations

Required Resources:

• Technical lead

• Two full-time programmers

• One part-time programmer

• Two design engineers

• One systems engineer

Functional Groups Participating:

• Engineering

• Information Systems

• Software Development

From “The Project ManagementWorkshop,” © 2001 James Taylor. Allrights reserved.

Published by AMACOMBooks, Division of AmericanManagement Association, 1601 Broadway, New York, NY 10019, To order call:800/262-9699.

Unlimited media choices can sometimes seem overwhelming.
    Today’s options for posting career opportunities are staggering. Recruiters havethe option of promoting jobs on potentially thousands of sites on the Web. LucentTechnologies realized the need to better focus their e-media resources.

    Although they were currently using an applicant tracking system, they wanteda more effective way to manage their job postings to career sites. Lucent believedtheir recruiters were spending too much time searching for the “ideal”site for particular jobs. They wanted a solution that would allow recruitersto utilize their time more effectively and focus on what they do best — findingthe most talented candidates for the company. Lucent turned to us and foundthe answer in HodesiQ.

Hodes iQ’s powerful media evaluation engines reveal the choice sites.
    Hodes iQ is a suite of powerful e-sourcing management tools, each designed tosolve specific recruiting challenges. The suite includes an advanced job postingmanager, an easy-to-use response manager, and a flexible corporate career sitehosting service.

    Lucent decided Hodes iQ’s job posting manager was the answer. The job managerimmediately exposed Lucent’s recruiters to the ideal career sites for theiropen positions. Recruiters gained access to the vast Hodes iQ e-media knowledgebase that includes thousands of sites — from free job boards, industry associations,general career sites, and industry mailing lists, to niche sites, discussiongroups, college boards, and diversity sites.

    More importantly, they had Hodes iQ’s media evaluation engines working on theirbehalf, selecting a set of media choices that are most appropriate for a particularjob.

    With this information in hand, Lucent’s recruiters could quickly find nichesites for their openings. Hodes iQ became an eye-opener to a new set of e-mediachoices. The client also took advantage of Hodes iQ’s powerful career site contractmanager, giving them the option of separating their contracts between operatingcompanies, divisions or even recruiters. Each can be tracked and billed accordingto specific needs. Lucent found that keeping track of expenses and activitybecame simple as a result of consolidated billing and one-click access to mediaactivity reports.

A complex posting process becomes a strategically automated operation.
    By using Hodes iQ, Lucent recruiters were exposed to a new set of e-media choices.This efficient solution saved the client time and money and rapidly turned theircomplex posting process into an automated operation. They also centralized efforts,allowing them to establish a consistent employer image and to maximize theire-media investments by tracking candidate response.

    Additionally, Lucent found that “consolidating the management of theirmedia contracts was a huge time-saver; and the fact that billing was centralizedwas very convenient.” Hodes iQ was able to provide a simple way for recruitersto quickly find niche sites for their openings, and also made the managementof the posting process much easier.

About Bernard Hodes Group:

As a fully integrated communications company, Bernard Hodes Groupoffers a full array of services to clients in the human resource industry. Theseservices range from advertising, applicant management, consulting, mediaplanning, and employer branding to assessments and metrics, research, resumesourcing, Web development, and more. The company is headquartered in New York,with over 70 offices and affiliates around the globe. Bernard Hodes Group is asubsidiary of the Omnicom Group (NYSE: OMC), the world’s largest communicationsgroup.

For more information on Hodes iQ, contact Bernard Hodes Group at 877/220-0201 or visit hodesiQ.com. For other Bernard Hodes Group products and services call 888/438-9911, or visit hodes.com.

Just as staffing industry members and their business clients were digestingthe $97 million settlement in the Microsoft employee misclassification case, theEEOC issued its “Enforcement Guidance Applying the ADA to TemporaryStaffing Agencies.”

    While Microsoft and related misclassification cases based liability onviolations of tax and employee benefits law, the EEOC Guidance focuses onemployment liability. It opens a new door of legal risk: compliance with theADA.

    In many ways the Guidance casts a larger net of legal risk than the highlypublicized Microsoft case. First, it covers all temporary workers (and temporaryworker candidates), not just “permatemps” — the significant butrelatively small segment of the multi-million member temporary workforce whowere the plaintiffs in Microsoft and related employee misclassification cases.The pool of potential litigants is far larger than the potential “permatemp”plaintiffs filing Microsoft-type misclassification cases.

    Second, it combines the ADA’s stringent and controversial legal requirementswith the broad reach of co-employment — the legal theory imposing liability onmultiple businesses as “joint” or “co-employers” for legalviolations by any one business against any worker — and applies them to thediverse contingent workplace.

    Temporary staffing agencies and their business clients, as well as outsourcefirms providing payroll, recruitment and other administrative functions all comeunder the Guidance’s broad umbrella. With the industry’s own statistics showing90% of businesses nationwide use temporary staff, few businesses will be immunefrom this new law enforcement salvo. The result is a legal landscape filled withrisk for all parties who manage, counsel, and otherwise service the growingcontingent workforce.

    This article explores how and why this Guidance poses these legal risks, andwhat employers can do to reduce them. The first step is to understand how broadthe law’s scope really is and learn whether your company or firm is covered.Second is to learn how to manage a contingent workforce in this changing legallandscape to avoid legal risks when hiring, assigning or managing temporaryworkers.

Is My Company Covered?
    The Guidance’s scope goes beyond traditional employment discrimination lawsin three ways:

1. The federal government is covered as an employer.
       Federal laws, including employment discrimination laws, usually exclude thefederal government from coverage. Not this time. This Guidance covers thefederal government as an employer under the 1992 amendments to theRehabilitation Act. The ADA already covers all businesses with 15 or moreemployees (and state/local government units of any size). Add our country’slargest employer, the federal government, and the scope of coverage growsdramatically.

2. Both disabled and non-disabled workers are covered.
       Employment discrimination laws traditionally protect members of specificallyidentified population groups, based on race, gender, religious preference,national origin or other designated criteria. This EEOC Guidance covers allemployees and job applicants, whether or not they have a disability. Forexample, the ADA’s requirements covering pre-employment disability-relatedinquiries and medical examinations apply to all applicants and employees,whether they have disabilities or not.

3. Co-employment extends liability for ADA violations far beyond staffingagencies.
       By incorporating the legal theory of co-employment, the Guidance can beapplied by courts to include client businesses and other third-party vendorfirms with which the agency does business. If a temporary worker brings a legalclaim under the ADA against a business or staffing agency, both firms can beliable for costs of reasonable accommodation and other ADA violations. Federalcourts have applied co-employment to hold both staffing agencies and theirbusiness clients liable for each others’ violations of employment laws inseveral recent landmark cases.

   
   

       Given this broad scope of coverage, the answer to “am I covered?”is likely “yes” — whether your firm is a staffing agency or businessclient, and whether or not the employees or potential employees you hire are”disabled.” Unless you operate a small business with less than 15employees, you face the risk of unexpected legal claims for ADA violations.

   
   

       Smaller businesses with more than 15 employees who don’t have in-housecounsel need to be especially alert when dealing with staffing agencies. Legalreview of contracts with staffing agencies can be expensive, yet these costs canpale compared to the costs of potential ADA claims against staffing agencies.

Reasonable Accommodation Plus Co-employment Equals Increased Risk

    The ADA’s reasonable accommodation requirement is a cornerstone of the lawand one of the most controversial issues in ADA claims. For staffing agenciesand their clients it raises critical questions about who must provide reasonableaccommodation (agency or client) and when. Add co-employment and the foundationis laid for disputes over “who pays the reasonable accommodationsbill” between agencies, business clients and other parties. Two generalrules apply:

1. Staffing agencies and their business clients are responsible for providingreasonable accommodations to disabled workers, and

2. Both parties can be sued if either knows that the other has violated thelaw.

    Consider this example:

    Company X (business client) hires a temporary worker from a staffing agency.The staffing agency violates the ADA’s reasonable accommodation requirements.Even if Company X complies with the ADA, it may be a joint employer of staffingfirm workers and held liable for the staffing agency’s ADA violations if itknows or should have known that the staffing firm is not providing reasonableaccommodations but fails to take corrective action within its control.

    Furthermore, even if Company X does not qualify as a staffing firm worker’semployer, it may be liable if it interferes with the worker’s ADA rights (unlessit is a Federal agency). This is because the ADA protects an”individual” from discrimination. Therefore, an employer is prohibitedfrom interfering with a person’s employment opportunities with another employerwhether or not the person is its employee.

    The EEOC recognized the significance of this requirement and its potentialimpact on staffing agencies and their business clients. In one of its mostcontroversial provisions, the EEOC suggests that “the staffing firm andclient may wish to set out in their contracts how reasonable accommodations willbe provided and who will pay for them.”

    This suggestion raises significant questions of “who pays the bill”for reasonable accommodation for all parties, and provides further fuel forlegal disputes. It led some prominent employment law attorneys to warn thatagency contracts would have to be redrafted to protect them against the newrisks created by the Guidance.

    As described earlier, the greatest impact may be on small businesses withmore than 15 employees who have contracts with large temporary staffingagencies. They can’t afford in-house counsel, but need to protect themselvesfrom the costs of ADA-related claims which temporary workers (and candidates)may bring against the agency.

Disability-Related Inquiries and Medical Examinations
    A second major area of concern for staffing agencies and their clients is theADA’s stringent regulation of disability-related questions during three timeperiods: 1) before an offer (even a conditional offer) of employment is made toa prospective candidate; 2) after an offer is made; and 3) during employment.Again, these are complex and controversial legal issues in the”traditional” workforce. Applying them to complex contingent workforcearrangements only exacerbates the confusion, risks, and potential for legaldisputes.

1. The Pre-Offer Stage
       The ADA prohibits employers from asking disability-related questions orrequiring medical examinations by prospective employees before a job offer ismade. This can create some difficult legal questions for staffing agencies,since an employment offer occurs when the worker receives an assignment with aspecific (business) client, NOT when a staffing agency places someone on itsroster for future assignments.

   
   

       For example, if a candidate goes directly to a staffing agency first and islater assigned to a business client, the staffing agency alone is responsiblefor providing reasonable accommodations. However, when a business sends a jobapplicant out to a staffing firm for payroll or other administrative purposes,both the staffing firm and the client business are responsible for providingreasonable accommodations during the application process. Both are at risk ifeither fails to comply.

2. After an offer is made
       Presuming a worker has been assigned to work with a business client, eitherthe staffing firm or its business client may ask any disability-relatedquestions or require medical examinations it chooses. However, it must treat allapplicants equally. That is, ask the same disability-related questions to allapplicants for the same job.

   
   

       Consider this tricky — yet typical — scenario facing a temporary staffingagency:

   A worker signs up with a staffing agency. No offer yet; therefore, nodisability-related questions or medical exams. Then an assignment comes up veryquickly. An offer is made and accepted before there is time for pre-employmentinquiries or medical exams.

       In other words, the “post-offer” stage, with its required questionsand exams under the ADA — is skipped. Or is it?

   
   

       Not according to the EEOC! The Guidance permits either agency or businessclient to withdraw the offer if disability-related questions or medical examinations tests show theapplicant either: (1) cannot perform the essential functions of the job, evenwith a reasonable accommodation; or (2) would pose a direct threat (i.e., asignificant risk of substantial harm).

   
   

       The ADA allows the agency or client to withdraw an offer based on the answersto these questions or the results of medical examinations, if it can meet the ADA’s stringent test: Beable to show the applicant either: (1) cannot perform the essential functions ofthe job, even with a reasonable accommodation; or (2) would pose a direct threat(i.e., a significant risk of substantial harm).

   
   

       A post-offer medical examination may disqualify an individual if the employercan demonstrate that the individual would pose a “direct threat” in the workplace. While itshould be noted that our Courts continue to struggle and disagree over themeaning of these terms, disqualifying an individual under this Guidance requiresthat a significant risk of substantial harm to the health or safety of theindividual or others that cannot be eliminated or reduced below the directthreat level through reasonable accommodation must be shown. Such adisqualification must be “job-related and consistent with businessnecessity.” This post-offer medical examination cannot be based onspeculation that the disability may pose such a risk in the future.

   
   

       To avoid further confusion, the EEOC suggests that: “a staffing firmshould consider telling an applicant what medical information will be needed before a particular assignment ismade. That way, the applicant can obtain the needed information and provide itquickly if a particular assignment becomes available on short notice.” Remember, this is only a suggestion from the agency — the staffing firm orbusiness client’s right to withdraw the offer is very real.

3. During the work assignment
       After being hired, both the agency and the business client may ask workersdisability-related questions if either has a reasonable belief that a medicalcondition will make the worker unable to do the job or will result in a directthreat. (The meaning of “direct threat” has itself been the subject ofconsiderable controversy, dispute and litigation.)

   
   

       If an individual is not hired because a post-offer medical examination orinquiry reveals a disability, the reason(s) for not hiring must be job-relatedand consistent with business necessity (another term subject to considerablelegal dispute and interpretation). The employer also must show that noreasonable accommodation was available that would enable the individual toperform the essential job functions, or that accommodation would impose an unduehardship.

Increased Litigation?
    Will the Guidance ignite an explosion of new litigation? The ingredients arein place. Consider the growing numbers of workers with disabilities seekingemployment. Consider the expenses of providing reasonable accommodations at atime when cost-cutting has become a necessity for most employers. Consider othervague yet stringent requirements for ADA compliance. Consider heightened EEOCenforcement efforts targeting temporary staffing agencies.

    Temporary workers have been motivated by recent high-profile cases likeMicrosoft and are learning how to assert their legal rights, aided byplaintiffs’ lawyers who recognize the power of co-employment and the far reachof liability it provides.

    These issues sound like fodder for hungry lawyers representing all parties inthe diverse contingent workforce. Some lawyers have already warned of thelitigation explosion we can expect when the various parties bringing theirworkplace disputes to the legal arena — which brings us back to where we started- the Microsoft controversy.

    Since the Microsoft case raised legal risks of hiring temporary workers intolegal concern for employers, many business leaders have voiced the fear ofbecoming “the next Microsoft” and paid tax and employee benefitslawyers for advice on how to avoid such a scenario. The Guidance shifts thefocus tolabor and employment lawyers. This time they have a long record of ADAlitigation and a larger pool of potential claimants. They may be very busy.

Conclusion: The Best Antidote is Education
    I am not a practicing lawyer, and I don’t own a temporary staffing agency ora business that hires temporary workers. However, I do know that balancing thegoals of minimizing risk and avoiding costly litigation while complying with thelaw and meeting the rights of workers with disabilities is unquestionably adelicate balancing act. This delicate balance requires effective education andtraining — the best antidote for all parties to reduce legal risks and complywith the ever-changing law.