EEOC informal discussion letters

If you're an HR professional in the U.S., chances are you've been to the EEOC's webpage many times. You may even subscribe to their feed. But do you know about their informal discussion letters?

These memos are written by EEOC legal staff, and while they are not "official opinions" of the Commission, they offer insight into several important issues. Consider some of the recent letter titles:

- Background checks of peace officers and the ADA (certain documents may be evaluated post-offer)

- Title VII and ADEA: Job Advertisements (you can "encourage" certain groups to apply, but "seeking" them is probably not a good idea; "journeyman" probably okay)

- ADA: Disability-Related Inquiries; Hiring (screening people out based on medical information must be shown to be job-related and consistent with business necessity)

- Title VII: Use of Conviction Records in Hiring (person convicted for auto-stripping could probably be rightfully denied a tow truck license or job)

- Americans with Disabilities Act: Periodic Testing (questionable whether periodic medical exams of all city bus drivers would be legal)

Links a go-go

Good reading for February 1, 2008:

U.S. Government launches photo screening tool to help employers verify employment eligibility

New Monster ads (seen the one with the sun coming up?)

Assessment trends for 2008

Increased use of video-sharing sites in U.S.

Attracting IT talent in 2008 (thank you HR World)

Do you know what you don't know you know?

HR academics vs. practitioners

Links a go-go for October 1, 2007

Good reading for October 1, 2007

The new affirmative action (about schools, but lessons for employers)

2007 ILG National Conference Highlights

Don't automatically dismiss people that been fired

Court rules EEOC may proceed with discrimination case against L.A. Weight Loss

Visa and using credit scores in the hiring process

Hiring supervisors and leaders (the #1 problem of most organizations, IMHO)

Deloitte demonstrates just how creative recruiting can be

How many names does it take to get to a hire?

Who does The Gap think it is? Monster?

An idea for checking false credentials

We all know how important it is to validate education and experience claimed by candidates. I've seen numbers as high as 50% for the frequency of, shall we say, embellishments, on resumes and applications.

Reference and backgrounds checks are the typical route for this check on applicant honesty, but they're time consuming and it can be challenging to get high quality information. Here's an idea to consider: how about using the interview as part of the background check process?

Have you considered asking questions like:

"I see you went to Texas A&M. Tell us a little about the types of courses you took and projects you worked on."

Job-related, specific, and forces the candidate to do a little more digging.

Or if you wanted to be more blatant:

"I see you went to UCLA. Tell us a little about the campus--where were the majority of your classes? What did you enjoy about the school?"

Not so job-related, perhaps, but certainly defensible as a check on their truthfulness.

Yes, deceivers could still prepare pat answers for these types of questions, but my guess is many won't and you'll save yourself a lot of time and headaches.

Links for June 8, 2007

I don't always like link lists, but frankly there's just too much good stuff out there to blog about...Happy Friday!

USERRA and the Five-Year Rule

Job Branding: Getting Beyond Blah

Court of Appeals Clarifies Summary Judgment Standard on Pretext

Green Recruiting: Building Your Environmental Employment Brand

Breaking the [America's] Job Bank

Targeted Sourcing/Research Techniques

Nuclear Lab in Idaho Using Jobcasts to Recruit

Supreme Court Clarifies FCRA Violations

EEOC Meeting Focuses on Employment Testing and Screening

On Wednesday, May 16th, the U.S. Equal Employment Opportunity Commission (EEOC) held a meeting to discuss issues relating to employment testing and screening, including the relevant laws enforced by the EEOC (e.g., Title VII, ADA, ADEA).

Several issues were discussed, including potential problems with specific screening methods (e.g., cognitive ability tests, credit checks), how the EEOC can better serve employers, and steps employers need to take in order to meet professional and legal guidelines (e.g., gathering validity evidence, investigating alternative methods with less adverse impact). Not for the first time, speakers emphasized that the Uniform Guidelines on Employee Selection Procedures need to be updated.

Speakers included EEOC staff members, plaintiffs in two of the more discussed recent cases (EEOC v. Dial Corp. and EEOC v. Ford Motor Co.), attorneys, and professionals in the field of assessment, including James Outtz and Kathleen Lundquist, who have frequently been retained as expert witnesses in employment discrimination cases.

Said Richard Tonowski from the EEOC:

"A mature technology of testing promises readily-available methods that serve as a check against both traditional forms of discrimination as well as the workings of unconscious bias. If that is the promise, then the threat comes from institutionalizing technical problems not yet fully addressed, the undermining of equal employment opportunity under the guise of sound selection practice, and the unintended introduction of new problems that will require resolution to safeguard test-takers and test-users."

Personality testing was mentioned prominently as an increasingly common practice among employers, but it appears (contrary to my earlier fears) that the focus was on those tests that could be considered "medical tests" under the ADA (such as the original MMPI), which leaves out many products, including the HPI, 16PF, and PCI.

Hopefully I'll have the slides from the presentation to post soon. In the meantime, check out this excellent summary from an attendee, and you can view the EEOC press release here. Statements of the speakers, along with their bios, can be found here, and it looks like the meeting transcript will be available there as well.

Court approves Googling employee...sort of

On May 4, 2007, the U.S. Court of Appeals for the Federal Circuit upheld a ruling by the U.S. Merit Systems Protection Board (MSPB) against an employee of the National Ocean and Atmospheric Administration. The individual was terminated for a laundry list of reasons, including misuse of a government vehicle, misuse of official time, and falsification of travel documents.

As part of the appeal of MSPB's decision, the individual claimed that his "guaranteed right to fundamental fairness" was violated when the deciding official Googled his name and came across information regarding his work history (essentially termination) with a previous employer. The individual claimed this unduly influenced the decision to remove him.

The court disagreed. The three-judge panel found that because information regarding the previous job loss did not influence the official's decision to remove the appellant, it did not show prejudice. Additionally, they found no due process violation.

The unanswered question here is what would have happened if the prior work history information HAD influenced the termination decision. And what if it was a hiring or promotion situation rather than a termination where voluminous information already existed regarding bad behavior? It will be interesting to see how this area of law evolves.

The appeals court decision (nonprecedential) is here.

Good string of articles about using the Internet to gather background check information can be found here.

Men's Wearhouse passes on background checks

A recent Business 2.0 cover story, titled "Ripping up the Rules of Management", mentions that George Zimmer, the founder of clothier Men's Wearhouse, has a policy that no employee or interviewee will ever undergo a criminal background check.

Seem risky? Well it doesn't appear to be hurting them. In fact, the company loses only .4% of revenue to theft, much less than typical for big retailers (1.5%). Says Zimmer:

"I don't trust the U.S. justice system to get it right...I'd rather make my own decisions, and I believe in giving people a second chance."

This policy is particularly interesting given efforts by various jurisdictions to limit criminal history checks in employment screening as well as the EEOC's renewed focus on criminal history checks as part of its new E-RACE Initiative.