Achieving a diverse workforce and learning how to use social media to recruit talent are two common goals for employers. Sometimes, though, the two objectives can work against each other. Gone are the days when employers would specify an age, gender, or other characteristic in a newspaper help-wanted ad. Today’s social media-aided recruiting opens a world of opportunities to find a diverse set of potential employees. But the technology social media uses also can lead employers to exclusion, rather than inclusion, if they’re not careful.
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The practice of microtargeting—pushing ads to people with certain characteristics and keeping those ads from showing up for other users—has led to complaints from jobseekers that have even led to litigation. In December 2017, the Communications Workers of America and three individuals filed a class-action lawsuit in federal court in California against companies they claim are unlawfully discriminating against people because of age.
The suit claims the employers have limited the audience for job ads on Facebook to younger users in violation of state and local laws as well as the federal Age Discrimination in Employment Act (ADEA), which prohibits discrimination against people 40 or older in hiring and on the job.
Focus on Inclusion
Although technology can be used to exclude certain groups, Lindsay Stanton, chief client officer for online data app Digi.Me, says employers should look to social media as a way to enhance diversity.
“Attracting specific demographics is really about inclusion, not exclusion,” Stanton says. “Social recruiting is about reaching candidates with niche expertise and experience, not about discrimination. When posting career opportunities on social media, recruitment professionals should use hashtags related to the job title, industry vertical, responsibilities, and experience, all of which is targeted to a diverse group of potential candidates.”
Stanton says, if done right, recruiting via social media allows employers to leverage their company brand so that people from “all walks of life” can share and promote job openings and make an employer’s career site go viral. “The beauty of going social is candidates help spread the word for you if your message is compelling,” she says.
In December, ProPublica and The New York Times co-published an article explaining how companies have targeted ads toward certain age groups. The article also notes that several companies that had run targeted ads have decided to change their strategies. Others, including Facebook itself, defend using targeted ads.
In a December 20 blog post, Rob Goldman, vice president of ads for Facebook, defended the company’s practice of tailoring job ads by audience. “These individual ads are part of broader-based recruitment efforts designed to reach all ages and all backgrounds. We completely reject the allegation that these advertisements are discriminatory,” he wrote.
Goldman’s post went on to point out that federal law prohibits discrimination in employment based on a number of protected characteristics. “That said, simply showing certain job ads to different age groups on services like Facebook or Google may not in itself be discriminatory – just as it can be OK to run employment ads in magazines and on TV shows targeted at younger or older people. What matters is that marketing is broadly based and inclusive, not simply focused on a particular age group. In addition, certain employers want to attract retirees, or recruit for jobs with specific age restrictions like the military or airline pilots.”
Tony Puckett, an attorney with McAfee & Taft in Oklahoma City, urges employers to carefully look at their online job postings and other recruiting materials.
In the January 2018 issue of Oklahoma Employment Law Letter, he wrote “The ability to narrowly focus a search for job applicants may appear to be an efficient use of recruiting resources, but the practice goes against the intent of the ADEA,” adding that disappointed applicants often sue, claiming they weren’t hired because of age.
Puckett says employers should audit their ads and job postings for age-specific references or placements that may limit access to just certain applicants. “You should also make sure your overall recruiting strategies include job advertisements in media that individuals of any age can receive or access,” he wrote.
Writing a termination letter can be a daunting task when you realize that so much can rise or fall on what it says. A few straightforward strategies can help you prepare a termination letter that provides all the benefits and helps you manage the risks that accompany all termination decisions.
What to Leave in and What to Leave Out
A termination letter is obviously a critical document. It will be scrutinized by the employee. Every word will be parsed by the employee’s lawyer. And, if necessary, jurors will review it during their deliberations to decide whether you proved the legitimate reasons for termination you explained in the letter.
That said, you should view the letter as an opportunity to boldly communicate why termination is the right result under the circumstances. With a few guidelines, you can write termination letters that communicate strength and confidence.
Deliver the News
A termination letter must directly and factually state the reasons for the termination—the purpose and strength of your decision. While the form of that statement may change depending on the situation, it should include a detailed summary of the employee’s conduct or performance that supports the decision. If appropriate, the letter should specifically refer to the company policy the employee violated. Also, to the extent that past disciplinary actions or performance management efforts support the decision, the letter should review those efforts.
When the decision is based on misconduct, the letter should consist of a summary of the employer’s investigation findings:
We have concluded, following our investigation, that your conduct toward other employees on January 16, 2018, violated the company’s antiharassment and discrimination policy. In particular, your display of sexually suggestive photographs in your cubicle and your explicit language in describing those images to others were direct violations of company policy. Also, you received a written warning and additional training on your obligations to avoid such conduct in October 2017.
Some investigations of misconduct require the employer to decide who is telling the truth. When the employee has denied the wrongdoing that supports the termination decision, your statement of the termination reasons should explain why you discounted his version of events:
We understand that you deny posting the offensive photograph, but other witnesses contradicted your denial and informed us during the investigation that you told them about printing the photograph and that you were thinking about putting it on the wall of your cubicle. Also, employees reported seeing the image in your cubicle over the course of several hours, including while you were present.
Performance-based terminations may require a broader explanation:
We have concluded that your performance does not meet the requirements of the technician position. In your 2016 performance appraisal, your supervisor noted that you needed improvement in your technical skills and attention to detail. The company provided you with two additional weeks of task-specific training with a coach during the first quarter of 2017. However, the performance problems continued throughout 2017. Your supervisor gave you three written reminders of the need for performance improvements in 2017 and again noted the need for additional improvement in your 2017 performance appraisal. Since that appraisal, it has become apparent that your job performance simply is not consistent with the requirements of your position.
Again, regardless of the reason for the termination, it’s important to remain focused and factual. Be detailed, but don’t resort to the “shotgun” approach of including every misstep the employee made over the last several years.
It’s sometimes tempting to “pile on” with the employee’s entire history, but some courts have noted that an employee can raise evidence of pretext (a discriminatory cover-up) by attacking the credibility of any of the employer’s reasons if the employer has asserted several reasons to support the decision. Stick to the events and past disciplinary action or performance management that actually contributed to the termination decision, and don’t rely on stale issues to bolster your reasons.
Also, avoid inflammatory characterizations of the employee’s conduct. A statement like “You sexually harassed your coworkers” or “Clocking out late amounts to stealing the company’s money” is likely to motivate rather than discourage legal challenges. Identify the policy or performance expectation the employee violated and how his conduct fell short. Leave out the adverbs and adjectives.
In situations involving performance problems unique to a particular job or misconduct that may not be understood outside your workplace, it may be necessary to explain the significance of your reasons for the termination by describing the impact on coworkers or the organization. Recall that a termination letter will have several audiences after the employee receives it. Part of the purpose of the letter is to help those audiences understand the decision:
Repeated tardiness, even just a few minutes, and failure to call in before missing a shift cause a ripple effect through the entire production department. One employee being late causes stress for all the others because they have to work faster to catch up so their down-line coworkers have the parts needed to complete their work. Also, delays in production of even a few units per day add up over time and make it more difficult for the entire organization to meet its goals.
The employee may quibble with your description of the impact of her actions, but the support for your statement should be self-evident if you have a policy that defines your expectations and you can relate those expectations to your business needs. Also, connecting the employee’s actions to their impact on coworkers helps balance the bottom-line focus of many termination decisions.
Implement the Termination
Once the reasons are explained, the termination letter should address the administrative details:
The letter should note if the employee’s final paycheck is enclosed and, if not, when the paycheck will be mailed or deposited. The letter should explain how much accrued vacation or paid time off will be included in the check.
The continuation of insurance benefits is one of the first questions raised by recently terminated employees, so informing the employee of when to expect benefits information and who will send that information may prevent some anxiety and confusion.
If the employee has been issued company property, the letter should specifically list the property that must be returned. Don’t forget things like work in progress, intellectual property, software, and data or data storage media that the employee may have transferred to a personal computer or otherwise removed from the work premises.
The employee should be notified of the arrangements for returning to his office, workspace, or locker to gather his personal belongings or how you will return personal items, if appropriate.
The employee should be reminded of his posttermination obligations under any confidentiality agreements or covenants not to compete.
If the company has a grievance procedure, attach a copy of it to the termination letter. If you provide the employee a copy of the grievance procedure within 7 days of his termination, his failure to use the grievance procedure is a complete defense to wrongful discharge.
Avoid Offers of Severance Pay
Employers will often consider an offer of severance pay conditioned on the employee’s willingness to waive all legal claims related to the termination. While you may see such an offer as a matter of compassion or risk management, employees sometimes view a severance offer as a sign of weakness and the amount as an insult.
Because of the potential for mixed messages, we advise employers not to include offers of severance in the termination letter. Once the termination is complete, you can negotiate severance pay from a position of strength.
Termination letters are the important final step to making and communicating a well-reasoned, defensible termination decision. We encourage you to consult counsel whenever you’re making termination decisions and involve your attorney in reviewing the termination letter. With those safeguards, termination letters can help you strongly promote and defend your decisions, regardless of the audience.
With the unemployment rate hovering at 4%, it’s no wonder employers are reporting optimistic hiring trends for Q2 2018. According to the recently released ManpowerGroup Employment Outlook Survey, U.S. employer hiring confidence is staying strong.
The Q2 2018 Hiring Outlook reports that 1 in 5 employers plan to grow their workforce in the 3 months ahead. The seasonally adjusted Net Employment Outlook for Q2 2018 is +18%, according to the latest survey of more than 11,500 U.S. employers.
Organizations are planning to add staff across all 13 industry sectors in Q2 2018. Employers report the strongest hiring intentions in Leisure & Hospitality (+28%) as the economy picks up. Strong Outlooks for Professional & Business Services (+24%) and Wholesale & Retail Trade (+23%) point to demand-driven growth in line with increased wages.
Employers in Wholesale & Retail Trade report some of the most optimistic Outlooks in more than 16 years as online retail continues to grow and the increase in distribution workers is expected to rise. The weakest Outlooks are reported in Mining (+15%), Government Information (+14%), and Nondurable Goods Manufacturing (+12%).
“We’re seeing solid, demand-fueled growth across the U.S. as the economy continues to strengthen and the labor market tightens at pace,” said Becky Frankiewicz, president of ManpowerGroup North America—said in a press release. “The competition for skilled talent is set to heat up and a just-in-time approach isn’t always getting employers the skills they need when they need them. Now is the time to invest in people by upskilling America’s workers. We should also seek untapped talent sources with adjacent skillsets that can adapt to fill in-demand positions. …”
Key findings from this survey are highlighted below. For more information, or the complete results of the ManpowerGroup Employment Outlook Survey, click here.
Last month, the Austin City Council passed a new Paid Sick Leave Ordinance—the first of its kind in the south. The Council voted 9-2 to implement the policy in the early hours of February 16, 2018. The ordinance applies to private-sector employers located in Austin, Texas, and requires employers to provide paid sick leave (PSL) to employees beginning October 1, 2018.
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Hours after the measure was passed, several state legislators announced they would challenge the ordinance saying it would hurt small businesses. According to reports, a number of lawmakers in both the House and the Senate say they will support legislation overturning the ordinance in the next session.
The next regular legislative session begins on January 8, 2019, so while local businesses will have to keep an eye on any such legislation, most employers must begin implementation of the new PSL regulation and allow employees to start accruing sick leave on October 1 of this year.
The following information provides details about the new ordinance as well as answers to some frequently asked questions about the policy.
Employers and employees in the city of Austin are covered by the PSL ordinance.
A covered “employee” is defined as a person who performs at least 80 hours of work in a calendar year for an employer. It does not include independent contractors or unpaid interns.
The ordinance defines “employer” as “any person, company, corporation, firm, partnership, labor organization, non-profit organization or association” that pays an employee to perform work and exercises control over the employee’s wages, hours, and working conditions. It does not include state or federal governmental employers.
When Does the New Law Take Effect?
For employers with 6 or more employees, the ordinance becomes effective on October 1, 2018. For employers with 5 or less employees, the ordinance becomes effective on October 1, 2020.
How Is PSL Earned and When Can It Be Used?
PSL is earned and may be used subject to the following conditions:
Sick time will accrue in 1-hour increments and employees will earn 1 hour of sick time for every 30 hours worked.
PSL will be available for an employee to use as soon as it is accrued. However, employers may restrict an employee from using earned sick time during the employee’s first 60 days of employment—but only on the condition that the employee has a term of employment for at least 1 year.
PSL will begin accruing on October 1, 2018 or upon the commencement of employment, whichever is later.
Accrual and Carryover
The amount of PSL an employee can earn depends upon the size of the employer, as follows:
For employers with 16 or more employees in the last 12 months, the yearly accrual cap is 64 hours (8 days) per year;
For smaller employers with 15 or less employees in the last 12 months, the yearly accrual amount is 48 hours (6 days) per year; and
All unused sick time carries over to the following year.
Although employees can carry over all earned and unused PSL to the following year, for employers who decide to lump sum grant the maximum amount of PSL at the beginning of a year, carry over is not required.
Employers do not have to provide more than the applicable yearly cap of sick leave in any year to an employee (e.g., 8 days or 6 days). Employees who are rehired within 6 months by the same employer must have their prior earned sick time reinstated.
For What Reasons Can an Employee Use PSL?
Employees may use earned sick time for any of the following reasons:
Time off needed for the employee’s own health condition, physical or mental illness, injury or health condition, preventative medical or health care;
Time off to care for a family member’s physical or mental illness, injury or health condition, preventative medical or health care; or
Time off for the employee to seek medical attention, seek relocation, obtain services from a victim services organization, or participate in legal or court ordered action related to an incident of victimization from domestic abuse, sexual assault, or stalking involving the employee or employee’s family member.
Regarding the term “family member” and which individuals qualify as family, the ordinance defines “family member” to include the “employee’s spouse, child, parent, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.”
What Notice Must Employees Give Employers to Request PSL?
To use earned sick leave, employees are required to make a “timely request” before their scheduled work time. However, the ordinance provides that exceptions to the notice requirement may have to be made when unforeseen circumstances occur. Employers may not require an employee to find a replacement to cover the hours of earned sick time as a condition of using earned sick time.
What are the Recordkeeping and Notice Requirements?
The PSL ordinance creates new obligations for employers that include record-keeping, handbook notification, pay statements, and posting requirements. Specifically, the new obligations include:
Monthly Statement—Employers must provide each employee with a monthly statement (electronically or in writing) showing the amount of the employee’s available earned sick time.
Maintain Records—Employer must keep records establishing the amount of earned sick time accrued and used by each employee.
Handbook Notice—If the employer provides employee handbooks, it must include a notice to employees about their rights and remedies under the ordinance in the handbook.
Mandatory Poster—After the City of Austin develops and releases the new PSL poster, employers must display it in English and Spanish in a conspicuous place where other notices are customarily posted in the workplace. No posting is required until the official poster is released.
What Action Is Prohibited?
Retaliation against employees is prohibited under the ordinance. Employers may not transfer, demote, discharge, suspend, reduce hours, or directly threaten these actions against an employee for requesting or using earned sick time, or for reporting a violation or participating in an administrative proceeding related to the PSL regulations.
Who Is in Charge of Enforcement?
The City of Austin Equal Employment Opportunity and Fair Housing Office (EEO/FHO) is responsible for enforcing the ordinance. Failure to comply with the PSL requirements carries a penalty of up to $500 for each violation. The EEO/FHO has the option to extend a 10 day grace period for an employer to voluntarily comply with the ordinance before imposing a civil penalty.
What Should Employers Do?
As Austin becomes the first city in the southern states to pass a paid sick leave law, it joins several other cities across the nation that already have such an ordinance. As mentioned, it is possible that the ordinance could be challenged legislatively or in court and may be delayed or even over-turned.
Whether the ordinance will survive, only time will tell. But in the meantime, employers should review the compliance requirements set forth in the new ordinance, including the new notice and recordkeeping obligations. Update payrolls systems and make the necessary changes to begin offering paid sick leave to covered employees, beginning October 1.
To read the complete text of the new ordinance, click here.
Nancy R. McDermott has more than 17 years’ experience as a legal writer and editor. She writes and edits the federal Personnel Advisor manual and several state Personnel Advisor manuals and newsletters and is responsible for the design, development, and data maintenance of the Personnel Advisor HR website. She has also worked as a Court Watch Research Analyst for Texas Watch, a grass-roots organization, and for the Texas Legal Services Center, conducting legal research. Nancy earned her Bachelor of Arts degree in Criminal Justice from the University of Texas at San Antonio, and her law degree from Vermont Law School.
Human resource professionals know the benefits of offering relevant and effective health and wellness benefits to their employees, but keeping employees engaged with them can often feel like a full-time job.
And with shrinking budgets to support benefits programs after they’re rolled out, how do you find ways to make sure your employees are getting the most out of what you’re offering?
These tips will help you engage your employees more effectively, even with no additional budget.
1. Make Your Employees More Aware
One of the easiest ways to get your employees to engage with their benefits is to simply communicate their availability. Nearly half of employees report that they don’t fully understand their benefits, so create a campaign or program that can help them better understand what they have access to.
If your company has an intranet where you share resources and office news, consider creating a resource section with short videos explaining the ins and outs of benefits. It’ll not only make it easier for employees to find the answers they need, it will also save HR time by not having them answer the same questions multiple times!
2. Host Contests
Depending on the benefits you offer, you may have built-in contest tools within the benefit platform that will let you engage your entire organization at once. Contests create friendly competition and may encourage employees who haven’t yet used a benefit to try it out for the first time.
Contest prizes can be awarded to those who complete the most challenges or earn the highest number of points in a given time period. Or, you can reward employees just for participating. If you don’t have additional budget to provide prizes like gift cards, consider offering a work-from-home day or casual-dress day as a reward.
3. Encourage Coworkers to Share
Employees often trust each other’s opinions about how effective benefits are and which ones they’ve had the most success with. If one of your employees hasn’t yet used a benefit, but some of their peers have, it’s likely that word will spread about the benefit’s efficacy.
See if you can set time aside with employees who are currently using their benefits to see what they like and what they don’t and address their concerns. By making benefits work better for your employees, they’ll be more likely to share their positive thoughts with others in the office.
4. Encourage Management to Participate
Similar to how employees take cues from their peers about how useful a benefit is, employees also look to their leaders for guidance. Get your management team to participate in their benefits to set a good example for employees who may be on the fence about participating.
If your managers aren’t using their benefits, it’s likely that employees won’t avail of them either.
5. Make It Easier to Find Benefits
Finally, while you may not be able to change how a benefit looks and feels, or even the nuances of how it works, you do have control over how easy it is for employees to access them. Instead of burdening employees with remembering lots of links and passwords, consider using a part of your company’s intranet or monthly newsletter to curate all of the links employees need to access their benefits. Putting links and resources in a single location makes it easier for employees to find what they’re looking for when they need it most.
As you try new engagement techniques, monitor their effects over time. Absenteeism rates and employee happiness may trend upwards at the same time as your engagement numbers rise. Always look at multiple metrics to get a complete picture of how your engagement programs are performing.
Chris Whitlow is the founder and CEO of Edukate, a workplace financial wellness provider with a mission to give every person access to expert financial guidance. Chris works with the Edukate team to solve problems that ease the financial stress most Americans experience each day. Edukate helps employers provide the best financial wellness benefits, thus helping employees manage their financial stress, increase their productivity, and live happier, healthier lives.
Massachusetts employers will face new obligations regarding pregnant women and new mothers when the state’s new Pregnant Workers Fairness Act (PWFA) takes effect on April 1.
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The PWFA requires employers to provide pregnant women and new mothers “reasonable accommodations” both for their pregnancies and for any conditions related to their pregnancies. It also creates a new protected class under the state’s antidiscrimination statute, Mass. Gen. L. Ch. 151B, which applies to employers with six or more employees.
“Related conditions” under the Act include but are not limited to breastfeeding or the need to express breast milk for a nursing child. Under the Act, a pregnant woman or new mother no longer needs to meet the “qualified handicapped individual” standard, as would be the case if she were asking for an accommodation based on a disability.
An employer need not provide an accommodation if it can show that the requested accommodation would be an undue hardship, but that is usually a high burden.
The PWFA prohibits an employer from taking adverse action against an employee who has asked for or been granted a reasonable accommodation, including (1) failing to reinstate the employee to her previous position or one that is substantially similar when the need for the accommodation ceases or (2) failing to hire or promote an employee based on her need for an accommodation.
The PWFA also makes it illegal to require a pregnant employee or an employee affected by a condition related to pregnancy to accept an accommodation that she declines to accept if the accommodation isn’t necessary to enable her to perform the essential functions of her job. That would include a prohibition against requiring an employee to take a leave of absence if there’s another reasonable accommodation that would allow her to perform the essential functions of her job, as long as there’s no undue hardship to the employer.
The law also prohibits an employer from knowingly refusing to hire a job applicant who is pregnant because of her pregnancy or a related condition if she is capable of performing the essential functions of the position with a reasonable accommodation.
Accommodations Under the Law
“Reasonable accommodations” under the PWFA may include:
More frequent or longer paid or unpaid breaks;
Time off to recover from childbirth with or without pay;
The acquisition or modification of equipment or seating;
A temporary transfer to a less strenuous or hazardous position;
A private space (that is not a bathroom) for expressing breast milk;
Assistance with manual labor; or
A modified work schedule.
The Act requires the employer and employee to “engage in a timely, good faith and interactive process to determine effective reasonable accommodations to enable the employee to perform the essential functions of [her] job.”
Employers are restricted in their ability to seek medical documentation to support the employee’s requested accommodation. An employer may not require medical documentation for the following accommodations:
(1) More frequent restroom, food, or water breaks;
(2) Seating; or
(3) Limits on lifting more than 20 pounds.
Required Notice, Penalties
Employers must provide existing employees written notice of their rights under the PWFA on or before April 1. New employees must receive written notice at the time of hire, and employees who inform their employer of their pregnancy or related condition must receive written notice of their rights within 10 business days of the day the employer learns of the pregnancy or related condition.
The PWFA creates a new protected class for employees in Massachusetts under Chapter 151B, which means that all the remedies already available to employees in other protected classes will be available to employees who are pregnant or have a condition related to pregnancy. Those remedies include back pay, front pay, compensatory and punitive damages, damages for emotional distress, and attorneys’ fees.
Employers will begin filing petitions for H-1B visas on April 2, and immigration attorneys expect U.S. Citizenship and Immigration Services (USCIS) to quickly reach the 85,000-visa cap.
The H-1B program allows U.S. companies to temporarily employ foreign workers in occupations that normally require a specialty degree. The 85,000 visas available include 20,000 set aside for holders of U.S. master’s degrees and 65,000 for everyone else. When demand for H-1B visas has exceeded 85,000 in the past, USCIS has conducted a lottery of the petitions it receives during the first five business days of April.
Before filing an H-1B petition, employers must obtain a certified labor condition application (LCA) from the U.S. Department of Labor (DOL), Elaine C. Young, an attorney with Kirton McConkie in Salt Lake City, Utah, explained in an article in the March issue of Federal Employment Law Insider. Employers also must verify that the wage they offer meets or exceeds the prevailing wage for the occupation in the geographic area of intended employment, as determined by DOL standards.
The DOL sets four wage levels for each occupation, with Level 1 representing entry-level workers and Level 4 representing employees who can work without supervision or who hold lead roles.
Young points out that the prevailing wage isn’t the minimum wage stated by the DOL. “An employer must attest on the LCA that it will pay the H-1B worker the minimum wage determined by the DOL or the actual wage it pays its other employees with similar experience and qualifications in the geographic area of intended employment, whichever is higher,” she wrote.
Young also wrote that employers should keep in mind that unless an H-1B employee is truly entry level and the occupation clearly qualifies as a specialty occupation, USCIS will likely question the “specialty occupation” nature of the job if the employer indicates that it merits a Level 1 wage on the LCA.
In June 2017, the DOL announced that it will “enforce vigorously all laws within its jurisdiction governing the administration and enforcement of non-immigrant visa programs” in order “to increase protections of American workers while more aggressively confronting entities committing visa program fraud and abuse.”
The announcement also said the DOL will continue to work with the U.S. Department of Justice and the U.S. Department of Homeland Security to further investigate and detect visa program fraud and abuse. The DOL said its Office of Inspector General has focused investigative resources toward battling visa fraud, including in the H-1B program. Those efforts have led to convictions of “attorneys, employers, recruiters, corrupt government employees, and labor brokers,” the announcement said.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.
Is your company using video in the recruiting process? If not, you may want to consider incorporating this technology into your recruiting strategies, as we are living in a digital age that is currently faced with a competitive candidate-driven market. Talent acquisition professionals are “mining for gold” it seems when searching for top talent. Really, there are two groups that you are looking to attract when searching for qualified candidates:
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The Active Jobseeker
The Passive Jobseeker
Video can help you attract both and reduce screening times in the process.
Attracting Active Jobseekers with Video
Active jobseekers are finding jobs in many ways, depending on the role that they are searching for. They use search engines, like Google. They look at job boards, social media sites, companies’ career sites, etc.
When faced with applying for multiple jobs, the candidate may see that the job title is what he or she wanted, read a few lines of text, skim, and quickly submit an application. Job searches are labor intensive and take a lot of time, so if a candidate can take a shortcut, he or she may just do that. As a result, a recruiter will get résumés and applications from candidates who do not qualify for the position.
That is why video is so great at attracting top talent. Candidates understand and retain up to 60% more about a position by watching a video versus reading, or skimming, text alone, which means that he or she will opt in or opt out of the application process based on if the opportunity is a good fit. Plus, videos can help candidates find your jobs with more narrow search engine keywords by applying as many relevant and job-specific meta tags as needed. And, did you know that the presence of video ranks 53 times higher on search engine results?
Attracting Passive Jobseekers with Video
Today there are many people who are unemployed and underemployed, yet there are still millions of job openings. One reason for this is because there is a gap in the skill set required for these job openings, which is why passive jobseekers are so vital to talent acquisition professionals.
Did you know that according to LinkedIn®, 75% of the workforce, fully-employed, considers him- or herself to be a passive candidate? That’s a very big potential talent pool.
The power of video is perfect for passive jobseekers. They are easy to share on social media to make it simple to take your message viral. Videos can be viewed on any mobile device, which is the way technology is changing. Videos are easy to track and obtain data and metrics on where the video is being viewed, how many “applies” per source, etc. Finally, video is a great way to brand your company, culture, and really give a visual to the candidate about your organization—thus, a great way to attract top talent.
In the end, the real argument becomes, Why would you NOT recruit with video technology?
Lindsay Stanton is Chief Client Officer for Digi-Me, a Video Technology Company for talent acquisition that helps organizations add new dimension to their job and employment brand messaging. In her time with the company, Ms. Stanton has facilitated relationships with many partners, including the largest recruitment advertising agencies, global recruitment process outsourcers, and staffing firms. These partnerships magnify the organization’s reach into the Global Fortune 1000, providing an effective and innovative solution to the largest global employers, including KellyOCG, TrueBlue, Aureon Staffing, Advanced RPO, USG Corporation, Prudential, and LG Electronics. A subject matter expert on the use of video technology as a recruitment tool, Ms. Stanton works closely with industry leaders, creating new and better ways to connect jobs and jobseekers. Follow Stanton on LinkedIn: https://www.linkedin.com/in/stantonlindsay.
The Iowa Court of Appeals recently found that an employee who made violent threats on Facebook couldn’t sue her former employer for retaliation after she was terminated. The court’s decision is important because it allows employers to make termination decisions when a protected complaint is pending. In other words, not all opposition is protected.
A black female employee had 5 years’ tenure with her employer when she began having serious attendance problems. She was repeatedly coached, counseled, disciplined, and suspended for tardiness and unexcused absences. In accordance with its progressive discipline policy, the employer repeatedly interacted with her about its concerns.
In the midst of her attendance issues, the employee was involved in a confrontation with a coworker who accused her of violating company policies regarding patient safety. After a somewhat heated exchange, the coworker stated, “Now I’m going to be accused of being racist.” The employee reported the incident, describing the coworker as the aggressor. At the same time, she reported seeing a doll hanging with a thread around its neck in a noose-like fashion in the workplace.
The employer immediately responded by separating the employees and investigating the employee’s allegations about the doll. The employer concluded that both the employee and the coworker violated various policies, but no race discrimination had occurred.
However, the employee refused to accept the outcome of the investigation, complaining that she was the only black female employee and insisting that she had been harassed. She claimed her coworker “got away” with harassing her.
Social Media Threats
Shortly after the investigation, the employee was suspended for being a no-call/no-show. During her suspension, coworkers reported seeing multiple threatening Facebook posts by the employee, including:
Love my Brothers Thank You [name] And [name] nothing like having your Brothers Thinking They Protecting You Know They Will Kill For A Sister @Anytime.
No one will ever take anything away from me.
YOU CHOSE THE WRONG NEGRO TO [EXPLETIVE] WITH AN[D] I WORK THE [EMPLOYER] YOU WANT WAR IM GIVING IT TO YOU.
YOU WANTED WAR YOU GOT IT THIS NEGRO IS READY FOR YOU AT ANYTIME. . . . IM NOT SCARED TO DIE.
The posts caused the employer to lock down its facility, place the employee on administrative leave, and conduct another investigation. The employer concluded that the Facebook posts were terminable conduct, citing its workplace violence policy, its policy against making threats to coworkers, her inappropriate/unprofessional conduct, her failure to cooperate in the investigation, and her retaliation against a coworker. The employee was terminated.
Reliance on Personnel Policies Protected Employer
The employee sued, arguing her termination was related to her ongoing concerns about race discrimination and suggesting her Facebook outbursts were protected activity. She accused the employer of being motivated by her race discrimination complaint and argued that its safety concerns were a pretext, or excuse, for illegal retaliation.
The court dismissed the employee’s claims without a trial, finding her complaint about race discrimination wasn’t the motivating reason for her termination. Rather, the Facebook posts were clearly the employer’s focus. The court properly characterized the posts as threats, not protected opposition to the employer’s practices. The Facebook posts may have started because the employee felt her coworker “got away” with discrimination, but they morphed quickly into threats that weren’t protected by the law and violated the employer’s established policies.
Employees who complain about discrimination aren’t immunized from their employer’s legitimate performance expectations and personnel policies. The court dismissed this employee’s case without a trial, which is important because courts often say that what motivates an employer’s personnel decisions is a question for jurors to determine based on their assessment of who is telling the truth on the witness stand. Here, the evidence was strong enough for the court to rule before the employer incurred the expense of a trial.
The court emphasized that there was no valid suggestion of any retaliation or improper motivation because the employer followed its policies when it disciplined and terminated the employee. This case serves as a reminder of the importance of implementing and enforcing clear workplace policies so you can rely on them if you’re faced with accusations of discrimination or retaliation.
Many federal agencies and their regulations experienced a lot of changes during 2017. The Equal Employment Opportunity Commission (EEOC), by contrast, had a relatively uneventful year. No major controversial issues surfaced, key leadership positions were left unfilled, and some EEO issues are important to the president’s daughter—and by extension may be important to him. So far, during the Trump administration, the agency has held the status quo.
Nominees Waiting to be Confirmed
We ended 2017 with two seats on the commission and the general counsel spot at the agency being unfilled. At some point in 2018, the agency will most likely have a Republican majority. President Donald Trump has nominated Janet Dhillon to serve as chair of the EEOC and Daniel Gade to fill the other vacancy. Neither has been confirmed by the Senate, although it’s likely they both will be. No one has been nominated to be the general counsel.
Title VII’s Coverage of Sexual Orientation, Gender Identity
While the federal courts have differing opinions on whether Title VII of the Civil Rights Act of 1964 covers sexual orientation and gender identity, the EEOC has steadfastly maintained that it does. I was with the agency throughout the second Bush administration and the Obama administration, and our training on the issue never changed. During their confirmation hearings, neither Dhillon nor Gade would commit to whether the law does or should protect LGBT individuals from discrimination and harassment.
Learn how to avoid costly fines and comply with the EEO-1 report filing requirements ahead of the March 31, 2018 deadline, when you attend: EEO-1 Report Filing Deadline March 31, 2018: How to Comply so You Don’t Get Fined, on Friday, March 16, 2018. This popular rebroadcasted webinar will feature a LIVE Q&A! Click here to learn more, or to register today!
Both nominees have voiced conservative views on employment matters in the past. Referring to the U.S. Department of Justice’s recent divergence from the EEOC’s position on Title VII’s application to sexual orientation and gender identity, Dhillon said it is “critical that the federal government ultimately speak with one voice” on the issue. The U.S. Supreme Court has not weighed in yet—in fact, the justices just declined to hear an appeal from the U.S. 11th Circuit Court of Appeals in a case filed by a lesbian employee who claimed she was fired because of her sexual orientation. (The 11th Circuit’s rulings apply to all Alabama employers.) After its vacancies are filled, we expect the EEOC to file fewer cases involving discrimination or harassment against LGBT individuals until the Supreme Court clarifies the law.
Sexual Harassment Claims on the Rise
Sexual harassment has been at the forefront of the news for months, and it’s likely to stay there for a while. We should expect to see an increasing number of EEOC charges and lawsuits as women begin to feel more empowered by the news coverage. It’s important to remember that the law hasn’t changed, and neither has the definition of what constitutes unlawful harassment in the workplace.
As we reminded you in December (see “Hollywood scandals generate new interest in workplace harassment” on pg. 4 of our December issue), you must ensure that your supervisors and managers are aware of the legal prohibitions against harassment and your policies banning unlawful conduct in the workplace. Supervisors should administer your policies consistently, and employees should be able to complain about harassment without fear of reprisal. Be sure your employees are educated on your internal antiharassment policies, including what constitutes unlawful harassment and how to report offensive conduct.
EEO-1 Pay Data Collection
Although the Office of Management and Budget halted the new pay data collection component of the EEO-1 report in August 2017, it may be resurrected in some form in 2018. Commissioner Chai Feldblum, a Democrat renominated by Trump to continue serving until 2023, said she believes the EEOC was directed to rework the form, not scrap it entirely. Dhillon said during her confirmation hearing that she would look at the additional data the EEOC needs to enforce the equal pay laws and suggested that employers might be required to turn over more pay data than they do now. So it’s likely that some pay data will be added to the EEO-1.
In August 2017, the D.C. Circuit sided with the AARP in its challenge to the EEOC’s new regulations governing wellness plans. The court found that the EEOC didn’t provide good reasons for allowing employers to offer incentives of up to 30 percent of the cost of health insurance in exchange for employees’ participation in a wellness program. The current wellness plan rules were left in place until January 1, 2019, and the agency was ordered to issue a notice of proposed rulemaking (NPRM) detailing its plans for the new rules by August 2018. In early February, however, the court partially granted the EEOC’s request to reconsider its ruling.
The agency now has no set schedule for issuing the NPRM or implementing new rules, but its current rules for workplace wellness programs will still be invalidated on January 1, 2019. The EEOC had previously said it might not have new rules in effect until 2021. So it looks like there will be no change with regard to wellness plans in 2018.
Dhillon and Gad have stressed that the EEOC should be involved in less litigation and more conciliation. The large systemic cases the EEOC has filed in recent years are expensive for both the agency and employers. Even though a new general counsel hasn’t been nominated, observers predict fewer lawsuits will be filed once the new commission settles in. Cooperation, outreach, and training to help companies comply with the law will be the focus of the Trump administration’s EEOC, whenever it is seated.