Category: Recruitment

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Found in Translation: Job Applications Go Mobile, Multilingual

Imagine going to apply for a job for which you’re well-qualified, and being forced to make your way through an impossibly difficult obstacle course just to complete the application. It sounds like an outrageous hypothetical situation, but millions of job-seeking Americans find themselves in this position every day.

In the United States, almost 60 percent of all workers are paid hourly wages, according to the U.S. Bureau of Labor Statistics. Of these nearly 76 million employees, almost 20 percent are Hispanic or Latino, many of whom speak fluent Spanish. And while low-wage positions, especially in the hospitality and retail industries, often value bilingual employees, their application and hiring process is largely inaccessible to these candidates.

Not only are traditional job-posting websites usually only available in English, but also they’re typically not optimized for mobile access. This is a huge problem, and one that alienates a significant portion of the target population of low-wage jobs.

According to Jobaline CEO Luis Salazar, only 15 percent of corporate employment websites and job boards are mobile-accessible.

“Of these low-wage workers who are accessing the Internet, more than 70 percent do so through a mobile device,” Salazar said.

This “critical divide” created by the absence of mobile-friendly job-hunt technology led Salazar to co-found Jobaline, an online jobs marketplace that’s both multilingual and easily accessible by smartphone or tablet.

Jobaline essentially streamlines the entire pre-screening process of the job search, from the online application to an automated phone interview, and uses advanced, unbiased algorithms to match only the most qualified candidates with each position. And each step of the way “can handle a duality of languages at both the employer and employee level,” Salazar said.

For example, the automated interview allows an English-speaking employer to ensure a candidate does indeed have a decent grasp of both English and Spanish.

“The system will ask you in Spanish to please explain in English what experience you have performing that job,” Salazar said. “If the recruiter hears a coherent answer in English, it shows that the candidate can understand and speak both languages.”

The technology can thus be used with any language, and even has speech-to-text capabilities for quicker review of applications.

The Hotel Group, which operates 25 Courtyard by Marriott, Crowne Plaza, DoubleTree, and Hiltonhotels in 10 states, has successfully used Jobaline to fill a “real void” in terms of qualified hourly employees, said Lynn Demateo, the group’s special projects and recruiting manager.

In the past, Demateo said, paper applications were available in Spanish, but having to go to the hotel to ask for it stopped many potential candidates from applying.

“Jobaline allows them to do it in the comfort of their own surroundings, getting assistance if they need it,” Demateo said. “It starts the dialogue in a more comfortable scenario.”

Other companies also offer more accessible job-search resources: job website Indeed has a smartphone- and tablet-optimized application, as does CareerBuilder, which allows candidates to apply to jobs “with just two taps of your finger,” according to its website.

And non-English-speaking applicants can turn to the multilingual job boards at, for example, the Hispanic/Latino Professionals Association and LATCareers. Monster also features a multitude of country-specific job boards through which international job applicants can search for U.S. jobs in their mother language.

Employers, take note: Software like this is the future of applying and hiring. By enhancing the bilingual and mobile-accessible capabilities of the job-application process, Jobaline and other similar technologies have simplified the job hunt for all involved.

“We saw the opportunity to use technology to serve a segment of the population in this country that is badly underserved,” Salazar said. “We’re fixing the inefficiencies in low-wage America.”

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What the ADA Says About Employee Medical Information and Social Media

The Americans with Disabilities Act protects, as confidential, employee medical information obtained by an employer.

Last year, I asked the following questions about the impact of social media on this confidentiality obligation:

What happens, however, when an employee suffers an on-the-job injury and a supervisor shares information about the injury on a Facebook wall or Twitter page? Or, what about when a supervisor posts about a co-workers illness? It can be as innocuous as, “I hope John Smith has a quick recovery from cancer,” or spiteful, like, “I can’t believe John Smith has cancer and I have his workload while he’s out on medical leave.”

At the time, my questions were hypothetical, as no court had yet to address the issue. A few weeks ago, however, an Indiana federal court — in Shoun v. Best Formed Plastics — began sketching an answer. 
 
George Shoun took a few weeks off from work to recover from a workplace injury, Jane Stewart, a co-worker, knew about his injury because she was responsible for processing his work-comp claim. Stewart went on her personal Facebook page and posted the following about Shoun: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” 

Shoun sued his employer, claiming that Stewart’s Facebook post violated the ADA’s confidentiality requirements by “deliberate[ly] disclos[ing] [his] medical condition to another person.”

 
The court denied the company’s motion to dismiss Shoun’s lawsuit. The company claimed that its employee had not violated the ADA because Shoun had voluntarily disclosed his medical condition by filing an earlier iteration of his ADA lawsuit before Stewart made her Facebook post. The court disagreed, concluding that Shoun had not voluntarily disclosed his medical condition to Stewart or anyone else at the company; he only disclosed it via a court filing.
 
All is not lost for employers, however. The court made a clear distinction between unprotected medical information that an employee volunteers to co-workers and protected medical information that an employer learns via an employer-sponsored medical examination or program.
 
Despite this glimmer of hope, employees need to be very careful when discussing a co-worker’s health on social media. And, employers need to train their employees about the ADA’s confidentiality rules and the extension of these rules to the 24/7 world of social media. Employees must understand that confidential medical information — workers’ compensation claims, Family and Medical Leave Act claims, reasonable accommodation requests, and other medical information related to the performance of the job — is off-limits for discussion. 

Social media is informal and instantaneous. Employees often post before they think about the implications of what they are posting. ADA violations are likely the furthest from one’s mind when posting about a co-worker’s injury or medical issue. A policy statement — and, more importantly, training — on this issue could save you from a disability discrimination lawsuit down the road.

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Soliciting Is One Tough Cookie

Last year, a story went viral about a mom fired from her job for selling her daughter’s Girl Scout cookies at work.

As extreme as this seems, this reaction may not be as outrageous as you might think. In fact, there is a great legal reason to ban Girl Scout cookie sales and other similar solicitations in your workplace — it might prove to be one of your best weapons against a union organizing campaign. The catch is that you need both a sufficiently broad no-solicitation policy, and to enforce it in a nondiscriminatory manner.

A lawfully drafted and sufficiently broad no-solicitation policy prohibits anyone from soliciting during work time and in work areas. To the contrary, an overly restrictive policy would either ban union-related communications on its face or operate to treat union-related communications differently than similar nonunion solicitations.

The former is easy to spot. What does the latter look like?

Consider an employer with a strict no-solicitation policy that ignores Girl Scout cookie sales or March Madness college basketball brackets. If that employer disciplines an employee for engaging in union-related solicitations, has the company enforced its no-solicitation policy discriminatorily?

The answer depends on whether the exceptions are so common that they swallow the rule or are merely isolated incidents.

For example, in United Parcel Service v. NLRB, a federal court concluded that because employees “routinely distributed such materials as fishing contest forms, football pool material, and information about golf tournaments,” the employer could not enforce its no-solicitation rule against union-related distributions.

However, in Cleveland Real Estate Partners v. NLRB, the same court concluded permitting occasional and sporadic distributions did not demonstrate discriminatory enforcement of a no-solicitation rule.

In the meantime, word comes from the National Labor Relations Board that it is looking to rewrite workplace solicitation rules and turn this issue on its head. In the NLRB ruling in Register Guard, the National Labor Relations Board held that an employer’s solicitation or other communication policy can lawfully bar employees’ nonwork-related use of an employer-owned email system, unless, on its face, it discriminates against employees’ exercise of Section 7 rights. Thus, under Register Guard, a policy that prohibits employee use of an email system for “non-job-related solicitations” does not violate the National Labor Relations Act, even if the very nature of that ban includes union-related solicitations.

The NLRB decided Register Guard in 2007, near the tail-end of the Bush-era board. Now it’s 2014, and the Obama-era NLRB is taking a look at Register Guard.

In early May, the NLRB posted a notice asking advocates to submit position briefs on whether Register Guard should be overruled.

By all appearances, the NLRB appears to be looking for a reason to reverse Register Guard and issue a rule under which a facially neutral email policy is nevertheless illegal if one could reasonably read it restricts employees’ rights to engage in protected concerted activity. While this re-imagining of Register Guard would be consistent with the NLRB’s more recent positions in social media and other workplace communication cases, it is nevertheless concerning for employers.

As for me, I am immune to the charms of the Girl Scout cookie. While I love a Thin Mint as much as next person, my son has celiac disease, so I avoid bringing into my home treats with gluten that he can’t enjoy.

For the rest of you, however, consider whether permitting your employees to sell cookies or engage in other innocent solicitations is worth the risk that, if a union organization drive rears its head, you will be left powerless to engage one of your key weapons — the no-solicitation policy.

And keep a close eye on the NLRB for actions that will severely hamper your efforts to limit solicitations in your workplace.

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Supreme Court Holds NLRB Recess Appointments Invalid. Chaos Ensues?

This morning, in National Labor Relations Board v. Noel Canning, the U.S. Supreme Court held that President Obama exceeded his authority in making recess appointment to fill vacancies on the NLRB in 2012. 

 
If you read the early analysis around the Web, you will see people calling this opinion “narrow” and “limited.” Make no mistake. If you are an employer, this case is huge. It likely means that every case decided by the NLRB during the time of the recess appointments is void. That’s more than a year of NLRB decisions out the window, including some of its cutting edge, and controversial, decisions on issues such as social media and protected concerted activity. 
 
Stay tuned for more analysis of this critical Supreme Court decision.
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Recruiting Orientation Guide 2014

As the talent wars heat up as the economy gets better, it will get harder and harder to find good people. The global job market is steadily improving, which means talented workers,  especially those with coveted information technology skills, can be more selective about the jobs they pursue.

And with more companies hiring, they have a lot of options to choose from. One in four executives expects to bring on full-time, permanent employees in 2014, and 42 percent expect to hire temporary or contract workers, according to a recent CareerBuilder survey. And these hiring organizations are likely to discover that finding eager, well-qualified candidates isn’t as easy as it used to be.

Deloitte’s 2014 Global Human Capital Trends survey shows that 79 percent of global leaders say retention and engagement as well as talent acquisition are among the most urgent issues they face today. And that puts their future at risk.

“In a skills-constrained environment, a company’s ability to find, attract and access highly skilled people is critical to success,” the report said. Yet just 13 percent of respondents consider themselves ready to handle current talent acquisition and access trends.

Are You Ready?

If you happen to fall into that 13 percent, congratulations. You are positioned to gain a competitive advantage over your peers. For the other 87 percent, however, it’s time to take a hard look at your approach to recruiting.

Whether you plan to hire 30 people this year or 3,000, you need a formal recruiting program that harnesses technology, social media and the communication skills of your managers and recruiting team to attract and retain the best people.

Fast Track:

More than 60 percent of executives say they rely on social tools for sourcing and advertising positions.

“More than anything else, recruiters need to build a rapport with the hiring managers,” said Lisa Rowan, an analyst with IDC. “That’s where a lot of recruiting programs fall down.”

That means recruiters and managers need to operate as a team.

When managers don’t provide feedback to recruiters, or they fail to make time to interview candidates and follow up on their decisions, it adds time and frustration to the hiring process. That keeps vacant positions open longer than necessary and sends a negative message to the candidate community.

“You have to think about the candidate experience as well as your own needs,” said Madeline Laurano, research director of talent acquisition solutions for Aberdeen Group. “You don’t want to send a bad impression.”

Plan

Create a brand: Your employment brand sends a message to potential recruits about what it will be like to work for your company, so think about what you want them to know, Laurano said.

Your brand might tell them you offer a fast-paced environment with room for growth, a fun place to work where they will love their job and make friends or a startup environment where they can have a lot of responsibilities right out of the gate.

Fast Track:

Recurly’s Sarah Mascardo said a good rule of thumb is that you have to reach out to 100 people to find four top candidates and one quality hire.

“Your employee brand should be tied to your core values but separate from the corporate brand,” she said. “It needs to be front and center of all your hiring communications, from social media postings and job ads to career-site messaging and videos.”

Define what you need: You can’t hire good people unless you know what you are looking for. Ideally a company will proactively develop profiles for every critical role in the company.

These profiles can be assembled through interviews with managers and employees. A review of the characteristics of high performers can also be used as a benchmark for “what good looks like.”

In-house or outsource: Before you can start hiring, you need to decide who will do your recruiting. Some companies outsource, others build an in-house team and many use a combination of both.

There are pros and cons to each model, Laurano said. The benefit of staying in-house is that those recruiters tend to understand the culture better, they have stronger relationships with hiring managers, and they are focused on finding great people for your company — without worrying about the needs of other clients.

But if hiring isn’t your strong suit, or you don’t have the resources, network or ongoing need to have a full-time recruiting staff, outsourcing is an easy way to secure good candidates with little effort.

Choose your tools: Recruiting technologies, including applicant tracking systems, automated screening, video interviewing and analytics tools add efficiencies to every stage of the process.

Roadblock:

More than 40 percent of business leaders say they are not ready to address talent and HR analytics, according to Deloitte’s research.

Define your process: Creating a consistent hiring experience across the organization ensures managers and recruiters know what is expected of them and recruits have a positive experience. The most important recruiting tool to start with is an applicant tracking system, which acts as a one-stop-shop for the storage and management of recruiting data.

A good recruiting plan requires:

• A process for opening a position. As part of this process, the hiring manager should assess the skills identified for the role, and talk to recruiters about their timeline and goals for hiring.

• A sourcing strategy. Based on the position, and past successes filling similar roles, recruiters should know where to post job openings and look for passive candidates, including social networks, job boards, campuses, association sites and their own career websites.

“Being active in the social media space is instrumental in branding your organization and attracting talent, as the sites all aid in the effort to create awareness around your organization and touch-points with potential talent,” said Terri McClements, U.S. human capital leader at PricewaterhouseCoopers.

• A referral program: Employee referrals are the strongest base for recruiting among internal sources, according to SilkRoad’s 2014 “Top Sources of Hire” report. These referrals yield 57 percent of interviews and 61 percent of hires.

• A process for narrowing the candidate list:This step may include automatedprescreening, background checks or initial interviews to narrow the pool to a short list of candidates.

• An interview process: Get commitment from managers for a set amount of time to do interviews, and let candidates know what the interview process will involve.

• A final decision-making process: Make it clear to everyone involved in decision-making how quickly they will be expected to make a choice.

Do

Participate in workforce planning: An effective recruiting strategy begins with workforce planning to make sure your talent acquisition plan supports the strategic goals of the business, said Jonathan Brown, vice president of global solutions at Futurestep, a Korn Ferry company. “This is a great opportunity for talent managers to get a seat at the table and demonstrate their value to the business.”

Roadblock:

“Remember you are selling this job as an opportunity to the candidates,” said Futurestep’s Jonathan Brown. When organizations act like they are doing recruits a favor by interviewing them, the experience can feel more like a trial, which may scare off good candidates.

Start with a rough idea of how many people you expect to hire for the year, then drill down:

• Identify titles and locations of the positions.

• Set deadlines for when critical roles need to be filled.

• Look at past hiring data and industry research to determine how long it is likely to take to fill each position.

• Create an annual budget, taking into account salaries, and cost of hiring.

Create a timeline: Using your workforce planning data, make a rough plan for the year, keeping in mind that every role requires a slightly different hiring strategy and schedule. Remember this is just a rough plan, and not something that can be succinctly broken into 12 identical chunks, Brown said. “Some months recruiters will have nothing to do and others they will be swamped.”

Get your name out there: Even if you are not actively recruiting, you should still be networking — especially if you are a young company getting ready to grow, said Sarah Mascardo, talent manager for billing company Recurly. “You want people in the community to know who you are, what you do and the potential opportunities you will offer,” she said.

When Mascardo joined Recurly in 2013, she began by hosting tech talks, and attending job fairs and recruiting events.

Start looking: When positions open, talk to the hiring manager about their expectations to create a timeline and profile for the new hire.

Build a short list: Use automated screening tools, background checks, application reviews, and initial interviews to narrow your candidate list, then schedule interviews.

Bring them in: Make sure hiring managers and their teams make themselves available for prompt interviews and decision-making — but don’t overburden them. “They need to be a part of the process to ensure quality hires, but you also have to respect their time,” said Jim Gillece, senior vice president and chief people officer at AlliedBarton Security Services.

Make an offer — promptly: When you force candidates to wait for weeks, it creates a negative experience, Rowan said.

Follow up: After the hiring process is completed, interviews managers and new hires to get a sense of the recruiting experience and what could be improved.

AlliedBarton: 100 Hires Every Day

AlliedBarton Security Services is on a tremendous growth trajectory that has kept its recruiting team working around the clock. “We’ve doubled our staff four times in the last 10 years,” said Jim Gillece, chief people officer.

Last year alone his team hired 30,000 people. And what’s even more impressive is the number of applications his recruiters reviewed — more than 800,000, according to Gillece. Adding to the challenge is that every position has a slightly different profile. “If we are hiring a security guard to sit in a lobby where thousands of people pass by every day, they better be extroverted,” he said. To make sure he’s hiring the right people in the least amount of time, Gillece has a formal recruiting process that begins with a competency profile, and includes psychological assessments and background checks, behavioral interviewing and metrics to track the effectiveness of the program, including time to hire and cost. “We start with the end in mind,” he said, creating a profile of “what good looks like.”

Gillece is also piloting automated video interviewing technology — in which candidates answer pre-set questions about their background and experience on a video, and send it to the company for review — to further increase efficiencies.

Review

Track your metrics: Measuring the results of your efforts does three important things.

• It proves the value you bring to the company.

• It helps you identify problems in your process.

• It gives you data to hone future talent acquisition efforts.

Some common metrics tracked by recruiters include:

• Volume of candidates in the pipeline per hire.

• Time to hire and cost per hire.

• First year turnover.

• Sources used to find candidates.

• Successful hires per offer.

Report back: “Create checkpoints in your talent acquisition cycle to review how you are doing compared with your targets, and report that to senior leadership,” Brown said. Then use that data, including lessons learned about what worked and what didn’t, to shape your acquisition goals for the next 12 months.

Recruiting Roadmap Review

We’ve organized our online Roadmap into three phases to help you implement the planning and execution of your performance management program. Below is a summary of the “Plan,” “Do” and “Review” of recruiting.

PLAN:

• Define an employment brand that embodies your workplace culture and make it part of every recruiting message.

• Define abilities for key roles, using past performance data, high-potential profiles, and interviews with managers and workers.

• Choose an applicant tracking system and other technologies to support your recruiting efforts.

• Establish a clear hiring process, including formal steps for opening a position, sourcing candidates, reviewing applications, interviewing and making offers.

• Define recruiting metrics, such as time-to-hire, that align with strategic goals.

DO:

• Participate in annual workforce planning to affiliate recruiting plans with strategic goals.

• Interview hiring managers about their expectations for new candidates.

• Conduct your search, using social media, job boards, internal referrals and any other sources that promise strong candidates.

• Narrow the application pool, using automated screening and/or first interviews to create a short list of possible hires.

• Get manager commitment for prompt interviews and decision-making.

• Follow up with managers and new hires to get their feedback about the recruiting experience.

REVIEW:

• Regularly analyze recruiting metrics to prove results, identify problems and analyze lessons learned.

• Report results to senior leadership to demonstrate the value of the program.

• Use results to shape future recruiting efforts.

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A Black and Blue Lawsuit: Tiffany & Co. Sued for Race Discrimination

My dog’s name is Loula Mae. “Loula” is name of the dog on the kids cartoon Pocoyo, which my son was obsessed with when we got her. “Mae” just sounded right to pair with Loula, and gives her a bit of a gentile, southern charm. Little did we know, however, that the birth-name of Holly Golightly, the iconic lead played by Audrey Hepburn in Breakfast at Tiffany’s is also Lula Mae. Now we know why our dog is so damn classy.

I only tell this story because today’s post is about the famous jewelry store, Tiffany & Co., which has gotten itself into a little legal mess over the racial composition of its management team and its alleged treatment of its lone African-American manager.

The New York Times reports that Michael McClure, a group director at Tiffany since 1993, has sued the jeweler, claiming a “systemic, nationwide pattern and practice of racial discrimination.” According to McClure’s lawsuit, he is the only African-American to hold one of the more than 200 management positions at Tiffany. He further alleges that that despite consistently glowing reviews since his hire, the company gave him a “warning for termination” earlier this year. McClure claims that his new boss provided that warning after meeting McClure for the first time, and then telling a group of vice presidents that he was surprised “a black man is representing the Tiffany brand.”

A lawsuit is merely a collection of alleged, unproven facts. For its part, Tiffany says that the lawsuit is meritless, and that it “welcome[s] and value[s] diversity in all forms.”

An employer like Tiffany likely does not have any affirmative action requirements — that is, it does not have an obligation to hire a racially balanced workforce. Having said that, however, it does not look good when defending a race-discrimination lawsuit if only 0.5 percent of your managers are African American. Companies should hire the best employees and fire the worst. Yet, you also need to think about what your business looks like, if for no other reason than having an “almost-all-white” management team is not going to make it any easier to defend the race claim brought by your lone black manager.

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Home in the Range: Health Care Retirement Costs as Much as a House

Many older Americans, stung by a recession that shattered investments and home values, have accepted the reality of a less financially secure retirement that comes later in life. As the golden years approach, they also are discovering that they are unprepared and increasingly concerned about health care costs after leaving the workplace.

Research from Fidelity Investments’ “2013 Retirement Savings Assessment” study released in March suggests that while 84 percent of pre-retirees (ages 55 to 64) wonder whether they’ll be able to cover health expenses during retirement, many greatly underestimate the amount of savings they will need. The study indicated that 48 percent of respondents believe they will need about $50,000 to pay for their individual health care costs in retirement. In contrast, Fidelity’s annual retiree health care cost estimate found that the average couple should expect to spend more than $220,000 in health care expenses over the course of their retirement, the same figure Fidelity reported last year.

The average couple should expect to spend more than $220,000 in health care expenses over the course of retirement.

According to Fidelity, retirees now spend more on health care than they do on food. If that trend continues, health care will be retirees’ second-largest expense in just a few years, with housing holding the top spot. Still, employees aren’t thinking that far ahead when saving money or managing their health.

“People aren’t making the connection between health today and health during retirement,” said Jeff Munn, vice president of benefits policy development for Fidelity Investments. “They’re thinking, ‘Am I going for an annual checkup? Am I taking my medication? Will I have Medicare?’ ”

Arthur Noonan, senior partner in the retirement business at Mercer, said less than 20 percent of companies provide retirement health care, and while baby boomers see how big of an issue this was for their parents, they’re not thinking about it themselves.

“Employees in that age bracket have a direct line of sight with the aging parent issue,” he said. “They see how unprepared their parents were, but they’re not thinking, ‘This is going to be me in 20 years.’ They need to take action, but they’re not, and companies aren’t always helping them take the next steps.”

At The Schwan Food Co., a Marshall, Minnesota-based frozen-food company, Chief Human Resources Officer Scott Peterson said it has implemented two programs designed to help employees meet health and financial retirement goals. Schwan recently announced an employee profit-sharing retirement plan that provides additional savings for employees and serves as a sign-up incentive for those not using the 401(k).

Schwan also moved to a consumer-driven health plan in 2013. Peterson saw that 60 percent of the company’s employees over the age of 40 contribute to their health savings account. Under Schwan’s new plan, employees can earn extra money for their HSAs by participating in wellness programs and achieving positive outcomes, such as healthy blood-pressure measurement and tracking physical activity. They also earn dollars by learning more about Schwan’s retirement savings plan. 

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Employers Beware: EEOC Stepping Up Disability Discrimination Enforcement

Last month, the Equal Employment Opportunity Commission announced that it was seeking “public input on potential revisions to the regulations implementing Section 501 of the Rehabilitation Act of 1973.” That Act governs employment of individuals with disabilities by the federal government, and was the Americans with Disabilities Act’s precursor. Without explanation, the Rehabilitation Act’s regulations impose an obligation on federal agencies to be “model employers” of individuals with disabilities; the EEOC is seeking to revise those regulations to provide a detailed explanation of that “model employer” obligation.

On the heels of that news, 10 of the 22 lawsuits filed or settlements reached by the EEOC in May included allegations of disability discrimination. That’s a .455 batting average for the ADA, which is none too shabby in anyone’s book. Some of the issues addressed by the EEOC in the past month include:

  • A $72,500 settlement with an Akron, Ohio, medical transportation services company, which fired an EMT-paramedic with multiple sclerosis instead of providing additional leave as a reasonable accommodation.
  • A $110,000 settlement with Norfolk Southern Railway Company, which medically disqualified a track maintenance worker because of degenerative disc disease without doing an individualized assessment of whether he could perform the essential functions of his job.
  • A $90,000 settlement with a Tennessee nursing home facility, which terminated an HIV-positive nurse. 
  • An $18,000 settlement with an Alabama athletic apparel retailer, which fired a legally blind sales clerk (who lost his full use of his sight while serving in the Army) without any consideration of whether an accommodation, such as a magnifying glass or a new computer monitor, might be reasonable.
  • A lawsuit claiming a Wisconsin energy company fired an wheelchair-bound employee instead of providing his requested reasonable accommodation of an automatic door opener.
  • A lawsuit claiming a Tennessee steel company refused to hire an applicant for a maintenance position after learning through a pre-employment medical examination that the applicant took prescription medications for an anxiety disorder and high blood pressure.
  • A lawsuit claiming a Connecticut electrical contractor refused to hire a dyslexic carpenter, without first exploring any possible reasonable accommodations for his disability.
What do all of these cases have in common? They all involve employers that failed, in some way, to engage an employee or applicant in the interactive process to determine if he or she could perform the essential functions of the job with, or without, a reasonable accommodation. Instead, the employer appears to have made snap judgments based on the individual’s disability and related stereotypes.

Disability discrimination is very much on the EEOC’s radar. Is your business sufficiently protected? Answer these questions—
  • Do you have a reasonable accommodation policy? 
  • Do you have accurately written job descriptions? 
  • Do your managers and supervisors know what the interactive process is, and how to engage in it? 
  • Have you trained your employees on disability awareness and reasonable accommodations? 

Unless you have answered “yes” to each of these important questions, your business is exposed to potential disability-discrimination issues. Considering how closely the EEOC is looking at these issues, is this risk is one your business wants to take?

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NLRB Judge Clips Wings of Hooters’ Workplace Policies

In Hooters of Ontario Mills [pdf], an National Labor Relations Board Administrative Law Judge found that a California franchisee of Hooters unlawfully fired a waitress for complaining about a bikini contest that she perceived as fixed. In the same decision, the ALJ also concluded that the restaurant maintained numerous illegal polices in its employee handbook.

Alexis Hanson, a Hooter Girl in an Ontario, California, outpost of the beer-and-wings establishment, complained to management that she believed that bar’s annual bikini contest was rigged. After the contest, she was terminated for “cursing at” the winner and the store’s Marketing Director. When she protested that she hadn’t cursed at anyone, the manager changed her tune and told Hanson, “Okay. Well, then you are being terminated for your negative social media posts.”

The ALJ concluded that Hanson’s discharge was unlawfully motivated by her protected concerted activity (i.e., her complaints to the manager about the bikini contest). The ALJ was persuaded by the fact that the employer had failed to conduct an investigation before firing Hanson, and also by its shifting reasons for her termination. 

The ALJ also concluded that a variety of policies in the restaurant’s employee handbook were overly broad violations of employees’ rights to engage in protected concerted activity:
  • NEVER discuss tips with other employees or guests. Employees who do so are subject to discipline up to and including termination.
  • Insubordination to a manager or lack of respect and cooperation with fellow employees or guests may result in discipline up to and including termination.
  • Disrespect to our guests including discussing tips, profanity or negative comments or actions may result in discipline up to and including termination.
  • The unauthorized dispersal of sensitive Company operating materials or information to any unauthorized person or party may result in discipline up to and including termination. This includes, but is not limited to, recipes, policies, procedures, financial information, manuals or any other information in part or in whole as contained in any Company records.
  • Be respectful to the Company, other employees, customers, partners, and competitors. Refrain from posting offensive language or pictures that can be viewed by coworkers and clients. Refrain from posting negative comments about Hooters or coworkers. In all cases, NEVER publish any information regarding a coworker or customer.
  • Any other action or activity that the Company reasonably believes represents a threat to the smooth operation, goodwill or profitability of its business may result in discipline up to and including termination.
What are the takeaways from this case?
  1. These employees were non-union. This case serves as a reminder that the NLRA’s protected-concerted-activity rules apply to union and non-union shops.
  2. It’s debatable whether complaints about a workplace bikini contest constitute protected concerted activity. In this case, however, the ALJ appeared to be more persuaded by what the manager did not do in response to the complaints, as opposed to what the employee complained about. The manager did not investigate, and did not maintain a consistent reason for the termination. In other words, the reasons given for the terminated seemed to be a pretext to cover up something else — retaliation for Hanson’s protected concerted activity. The moral of this story? No matter the situation, thorough investigations and maintaining a consistent story will save your bacon in many workplace lawsuits.
  3. As often happens in theses cases, the termination served as an entre for the NLRB to review (and overturn) workplace policies as overly broad. If you don’t want the NLRB to see your policies, don’t fire employees for protected concerted activity. Most of these cases get to the Board because someone was fired, not because someone just decided, out of the blue, to challenge a handbook.
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Prejudice vs. Racism: Please Don’t Confuse the Two

Last week, Inc. interviewed the billionaire, entrepreneur owner of the Dallas Mavericks, Mark Cuban. In light of Donald Sterling, racism was one of the topics covered. Cuban’s candid and honest response has sparked a wave of controversy:

If I see a black kid in a hoodie and it’s late at night, I’m walking to the other side of the street. And if on that side of the street, there’s a guy that has tattoos all over his face — white guy, bald head, tattoos everywhere — I’m walking back to the other side of the street. 

While we all have our prejudices and bigotries, we have to learn that it’s an issue that we have to control, that it’s part of my responsibility as an entrepreneur to try to solve it, not just to kick the problem down the road.…

Cuban has been wrongly crucified for his candor. Prejudice is human nature; it’s not bigotry or racism. We all hold prejudices. Bigotry and racism, however, imply intentional hatred. Crossing the street late at night because you see someone in a hoodie coming towards you does not mean you hate that person because you assume he’s black. Instead, it means you’ve been influenced by what you’ve seen, heard, or experienced, and that influence is causing a reaction.

Here’s the difference, from a Title VII perspective. If you learn of race-based comments or action in the workplace, you have an obligation to investigate and take appropriate corrective action reasonably to ensure that it doesn’t happen again. If you are dealing with racism, no corrective action will halt the behavior, and the only likely response is termination. If, however, you are dealing with unconscious prejudices, you can use the incident as a learning tool to open a dialogue with your employees about race.

In managing employees, it is unrealistic to expect them to hold no prejudices. Recognizing this fact is the first step to managing race in our workplaces.