Thursday, April 30, 2015

Should You Use an ATS?

If you’re the company recruiter, or the HR generalist who also handles recruiting and hiring, having an Applicant Tracking System (ATS) may seem like heaven – even a necessity to maintain your sanity. When it’s possible to receive hundreds or thousands of resumes/applications for a single job posting, it is indeed a daunting task to wade through all that data in order to identify the best 3, 5 or 10 applicants you want to pursue further. In fact, this is probably the number one reason an ATS is implemented.

Other good reasons include:

Discrimination. A computer program is sorting through the resumes, so there's no opportunity at this stage of the process to rule anyone out based on age, gender, ethnicity or other protected characteristics that may be evident or implied in a resume. The ATS also allows you to quickly show you’re complying with all federal laws. Additionally, if you’re a federal contractor, the data you must collect, keep and report on is easily compiled into those required reports.

Cost effectiveness. The time and effort saved could easily best the cost of hiring additional staff to handle the task.

Ancillary tasks. Provides job requisition, offer approval, and onboarding processes so that you can concentrate your efforts elsewhere and provide a consistent approach to all your new hires. Eliminates duplicate data entry by integrating with other systems like background checking, E-Verify and HRIS.

All good reasons to use an ATS, whether you go simple, bare bones, or pop for one with all the bells and whistles (and $$$!). But then, there is a dark side. One which many applicants are quite familiar with, and that recruiters and HR folk should be aware.

With all the functionality these systems offer, you can program them so restrictively and make the application process so cumbersome, you’ll lose many applicants. Either they’ll get so frustrated trying to simply apply for your job opening that they give up, or the system will weed them out and send them into the deep, dark of ATS hell, never to be seen again.

In order to have the system screen for the applicants you want, it’s programmed to look for certain keywords that you choose. These keywords match qualities you want in an applicant or skills you need in the job. If a resume contains the right keywords, the system sends it to the next stage in the process. These keywords might be names of universities, degrees or certifications, former employers, skills, etc.

The problem is that if you program it so tightly, you’ll miss many great candidates because they didn’t use the "right" keywords the system is looking for. It’s a machine, it’s not perfect. In fact, according to a 2012 study by Preptel, "Seventy-five percent of applicants are discarded [by Applicant Tracking Systems] because of the words in their resume," Granted, Preptel has a horse in this race, since it offers a service that optimizes resumes for job seekers. But even if the figure isn’t as high as 75%, that’s a huge number of candidates you could be losing out on.

Beyond keywords, formatting and the way headings are placed or worded can muck up the works; the software unable to read the resume unless formatted in the preferred way.

Becoming dependent on an ATS’ ranking of resumes also poses risks of missing good candidates. In fact, many recruiters don’t even look at the resumes, but rely on the system’s ranking and pass them along to the hiring manager.

Overuse of these attributes of Applicant Tracking Systems dehumanizes the hiring process; for both the applicant and the company, and prevents you from seeing the best applicants.

It’s possible to take advantage of the best features of these systems, while avoiding the traps. Just another way to keep the "human" in human resources.

Thursday, April 23, 2015

EEOC Releases Wellness Program Guidelines

Are they helpful?

Finally, in response to the uproar over several lawsuits the EEOC filed against employer wellness programs, the agency has released its "guidance" on how such plans can operate without violating ADA, GINA and HIPAA laws. But, it looks like the guidance may pose even more questions.

Much of the EEOC’s lawsuits hinged on the fact that it felt that the penalties imposed under some company’s wellness programs were so harsh (their opinion) that they rendered the programs "involuntary", thus violating the above mentioned laws. Of course, this didn’t take into account that those plans were well within the allowances of the Affordable Care Act for wellness programs. The ACA states that employers can offer wellness incentives/penalties as long as they don’t exceed 30% of the value of an individual’s insurance premiums (50% if the incentives are tied to smoking cessation). Hence the skirmish.

A Few Highlights:

The rule allows employers to impose penalties on employees who do not participate or do not achieve certain health outcomes. The maximum allowable penalty an employer can impose is 30% of the total cost of employee-only coverage. The calculation of the penalty must be based on the total cost of the coverage – the total of the amount the employer and the employee pay. So, the 30% allowed is not 30% of what the employee pays for his/her coverage, but 30% of the total premium. If the total premium is $5,000, the maximum penalty can only be $1,500. 

In order for a wellness program to be considered voluntary, it must not

  • Require employees to participate,
  • Deny access to health coverage or limit coverage for non-participation
  • Take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten employees who do not participate or who fail to achieve certain health outcomes

Asking employees to complete a health risk assessment or have a biometric screening for the purpose of alerting them to health risks (for example, having high cholesterol or high blood pressure) is acceptable under a wellness program.

While businesses will probably welcome these rules (if for no other reason than if the EEOC sues them, at least they’ll know why they’re being sued), there are some problematic issues here. The proposed rule would limit incentives to 30% of the cost of employee-only coverage; even when the employee chooses employee-plus-one or family coverage, instead of allowing up to 30% for all levels of coverage. This seems to be counter to what the ACA had intended. According to the HR Policy Association, there are also some undefined terms in the rule that are not in the 2013 final ACA rules on wellness programs, including what it means for such programs to have "unreasonably intrusive procedures." Is a test for high cholesterol or blood glucose unreasonably intrusive? HR Policy has scheduled a conference call with Commissioner Lipnic on May 13th (see link for details and to register for the conference call), to hopefully get clarification on these and other issues.

The public has until June 19, 2015 to comment on the proposed rules. The EEOC will then vote on a final rule. After approval, it will be sent to the Office of Management and Budget before it’s published in the Federal Register.

Nothing I’ve seen has indicated what effect, if any, the proposed rule will have on the lawsuits the EEOC has filed.

So, we still wait for a final resolution on this issue.

Thursday, April 16, 2015

Follow the Leader

Will copying your senior leadership get you where you want to be?

So, once again I direct your attention to a recent CareerBuilder survey. [Side note: I love their surveys and polls. They’re pretty much always timely in topic and sometimes downright funny (like the one where they list the worst excuses for calling in sick). But I also love them because they provide me with a relatively easy post during a crappy week. Awesome!]

This time around, the clever folks at CareerBuilder surveyed 552 executives (hiring and human resources managers in senior leadership positions including CEOs, CFOs, COOs and Senior VP) ages 18 and over to discover common characteristics of these senior management folks. What they found puts the lie to a common belief that execs are evil, money-hoarding, in-your-face-with-my-wealth jerks. That’s not to say those kind of folks don’t exist, just that maybe they’re not really the norm.

Some highlights:

Seventy-nine percent of the executives polled drive themselves to work in an regular old auto; with 1 in 4 (24 percent) drives an SUV, 1 in 5 (22 percent) go for a mid-sized sedan, and only 1 in 10 (10 percent) toddle around in a luxury sedan. Some 18% use more environmentally friendly ways to get to work, with 9% of those taking public transportation (bus or train), 4% driving hybrids, 4% walk, and 1% riding a bike.

Gourmet tastes in food and wine? Not so much, really. More than 3 in 5 of executives (62%) refrain from drinking alcoholic beverages at company events. They go for soda (2%), water (19%), coffee (13%) or nothing at all (7%). Thirteen percent of executives enjoy a beer, and the same number (13%) go for wine, and 8% opt for mixed drinks. When it comes to dining, nearly half of executives polled (42%) bring their own lunch to work, while the rest go out for fast food (22%) or food from a sit-down restaurant (14%). Ten percent of executives say they don’t eat lunch at all on a typical day. Sounds a lot like the rest of us.

So, will copying your executive leadership get you anywhere? Maybe, just don’t do the creepy copy thing (that’s likely to get you canned or arrested). The survey points out that common career advice dictates you should dress for the position you want, not the position you have. I agree with that to an extent. Performance is key, but presentation can be essential, as well. Rosemary Haefner, CHRO of CareerBuilder says "the way you present yourself….is…a reflection of how seriously you take your job". This is so true.

Follow the leader… Senior leaders should be setting the tone for how we conduct ourselves in the workplace, so look toward them for direction when it comes to not just dressing the part, but conducting yourself like a leader as well. This is the flip-side to the necessity of senior leaders to "walk the talk". If they’re not living the values of the company, how will they expect others to?

Dress for success. Don’t run out and buy the same suit/dress/sweater as your boss. But adding your own style or set piece to the basic black corporate suit or dress expresses your professional demeanor as well as your own personal style.

Be the brand. Even outside of work, CEOs and senior executives are considered the "face" of the brand. So, even when not at work, they’re living the company’s values. Keep this in mind when you’re out socializing (and posting that selfie on Instagram!). Remember that you’re a representative of your company and how you act reflects on the company – and you.

Simple, basic but on-target advice.

Thursday, April 9, 2015

Will Transparency Measures Sling Mud at the EEOC?

The House Subcommittee on Workforce Protections is looking at legislation that might rein in the EEOC a bit. Opponents say these bills could eliminate some important workplace protections. I guess it all depends on which side of the issue you fall, but I don’t see any danger of workplace protections being jeopardized by these bills.

Rep. Tim Walberg, R-Mich., chairman of the subcommittee said on March 24th "Unfortunately, the enforcement and regulatory approach adopted by the EEOC in recent years raises serious doubts about whether our nation’s best interests are being served." Republican leaders in the House, and business leaders across the country have claimed that the EEOC has overreached its authority and initiated a litigation agenda that goes far beyond congressional intent on the enforcement of several workplace discrimination laws.

Democrats on the subcommittee have claimed that the EEOC is only performing its duty and that the proposed legislation would block it from enforcing laws such as Title VII of the Civil Rights of 1964 and the Americans with Disabilities Act (ADA). With the legislative and regulatory "expansions" of just these two laws already in place, I don’t see much chance of that happening.

So, the four laws the committee is discussing are:

Certainty in Enforcement Act of 2015 (H.R. 548), which would protect employers who are required by federal or state laws that mandate businesses perform criminal background checks before hiring for certain jobs. Current EEOC "guidelines" state that such laws will not be a defense against charges of discrimination or disparate impact. Seriously, the EEOC has said that if your business is barred by the state or federal government from hiring people with certain criminal backgrounds, that fact will not protect you if the EEOC decides that your background checking and resulting hiring practices are deemed discriminatory by their (confusing) standards. The guidance is so confusing that many businesses have become reluctant to perform criminal background checks on applicants. Gail Heriot, a law professor at the University of San Diego and a member of the U.S. Commission on Civil Rights stated "……after reading it [the guidance], even experienced attorneys don’t know how the EEOC wants employers to resolve particular cases." She went on to say that Congress should approve H.R. 548 because the situation could endanger the public if employers unknowingly hired individuals with criminal or violent backgrounds.

Litigation Oversight Act of 2015 (H.R. 549), requires that EEOC commissioners vote to approve litigation involving multiple plaintiffs or that involves an allegation of systemic discrimination. The bill would also give individual commissioners the power to request that the commission vote to approve any of the agency’s litigation efforts. Currently, the EEOC General Counsel does not need approval from the commissioners to pursue controversial lawsuits or engage in aggressive litigation tactics. Shouldn’t they all agree a case should be pursued before they do so? Shouldn’t they all be held accountable for their decisions?

EEOC Transparency and Accountability Act (H.R. 550) would require the EEOC to post on its website and include in its annual report any case in which the EEOC was required to pay attorney fees or court costs and publicize any court-imposed sanctions. What’s good for the goose, should be good for the gander. President Obama’s recent orders that federal contractors be required to report any violation, or accusation of violation of federal workplace laws and face debarment because of them, is a prime example. Or how about OSHA’s new requirement for businesses to publically shame themselves over workplace injuries? Hmmmmm? Why should the EEOC be exempt from this disclosure?

Preserving Employee Wellness Programs Act (H.R. 1189), which would clarify that any employer-sponsored wellness program that complies with the financial incentive regulations of the Patient Protection and Affordable Care Act (PPACA) would also be in compliance with the ADA and the Genetic Information Nondiscrimination Act (GINA). This is in direct response to the EEOC filing lawsuits against several companies saying their wellness programs violated these laws, while at the same time they complied with the provisions of the Affordable Care Act. Recently, the EEOC submitted its proposed rule to the Office of Management and Budget for approval. Can we hope that H.R. 1189 will no longer be necessary? We shall see.

I knew this was going to be an interesting legislative "season"!

Thursday, April 2, 2015

Maryland Legislative Update

The train switched tracks….

In February, I shared here a brief summary of several bills that were before the 2015 Maryland General Assembly. Well, the "cross-over" day has come and gone (this is the deadline by which a bill deemed favorable and likely to pass in one house must "cross over" to the other house for its consideration. And while it ain’t over till it’s over, some bills have clearly died in committee, either garnering an "unfavorable" vote and/or being withdrawn by the sponsor due to lack of interest or support, or simply languishing without a vote at all.

The results don’t surprise me much. With a Democrat controlled state legislature and a newly-elected Republican governor, I had to wonder why some of these bills were even brought forth. It’s also a bit unclear exactly why so many received an "unfavorable" determination in committee given the decidedly liberal slant (in a state that’s about as blue as they come), unless our elected officials actually realized many of them were simply a waste of time and effort at this point. At any rate, here’s a rundown of the bills I covered previously, and a few more – just for fun.

Wage Records, Wages, and Paydays - Requirements
Creates a requirement for a "wage notice" to be given to each new hire, and to all employees yearly, and when any pay change occurs. Washington, DC recently passed a similar law. New York State repealed its requirement for this notice recently – due to the business burden and the fact that such a notice is basically redundant. Unfavorable Report by Economic Matters; Withdrawn

Discrimination Based on Engagement in Lawful Activities – Prohibition
This bill would prohibit an employer from failing or refusing to hire, discharging, or otherwise discriminating against an applicant or employee on the basis of the applicant's or employee's engagement in a lawful activity off the employer's premises during nonworking hours. Currently, 29 states have some type of statutory protection for lifestyle discrimination or legal off-duty conduct. Unfavorable Report by Economic Matters

Discrimination Based on the Use of Tobacco Products - Prohibition
Generally prohibits an employer from discriminating against or taking adverse action against an employee or an applicant who uses tobacco products off the employer's premises during nonworking hours. Currently, 18 states have laws specifically related to the non-work use of tobacco products. Another eight states protect employees from discrimination if they use lawful consumable products, which would include tobacco. Four more states say employers can't discriminate against employees who engage in lawful activities outside of work. Unfavorable Report by Economic Matters

Fair Employment Preservation Act of 2015
This bill expands the definition of "supervisor" in relation to claims of harassment, discrimination, hostile work environment and retaliation. Also submitted last year, this bill specifically rejects the Supreme Court’s ruling in Vance v. Ball State University, 133 S.Ct. 2434 (2013), holding that a "supervisor" is defined as a person with the authority to take tangible employment actions against their victims. The sponsors of this bill want to include as supervisors those that "direct" the work others, regardless of their lack of authority to effect tangible employment action. In the House - Hearing 2/11 at 1:00 p.m. This bill appears to not have gotten further than the initial "reading".

Right to Work
Prohibits an employer or a labor organization (union) from requiring employees to join or remain a member of a union, or pay dues or maintenance fees to a union, as a condition of employment or continued employment. This bill has been submitted for several years running and has never made it out of committee. There are 26 states with Right to Work laws on their books. Unfavorable Report by Economic Matters

Maryland Second Chance Act of 2015
Allows a person to petition the court to shield court records and police records relating to certain convictions no earlier than 3 years after the person satisfies the sentence imposed for all convictions, unless the person is convicted of a new crime during a certain time period. Various versions of this bill and other "shielding" bills have been submitted for the past 3 years or so, and none have been passed as of yet. In the House - Hearing 2/26 at 1:00 p.m. Another one that simply died…..

State Minimum Wage Rate - Exceptions - Social Service Nonprofit Organizations
Authorizes nonprofit organizations that provide social services and have an annual operating budget of $250,000 or less to pay employees 85% of the State minimum wage or $7.25 per hour. Our own Senator Getty is the primary sponsor of this bill. In the Senate - First Reading Finance. Went nowhere.

State Minimum Wage Rate – Increase
This bill calls for the immediate increase of the minimum wage to $10.10 per hour; eliminating the phase-in of the rate passed last year. Unfavorable Report by Economic Matters

Maryland Healthy Working Families Act
Businesses with 9 or more employees must provide paid sick and safe leave. The leave will accrue at the rate of at least 1 hour for every 30 hours worked, up to a maximum of 56 hours per year. In addition to the leave, the bill requires a fair amount of documentation, notices to employees, per pay period accounting of leave balances to the employee, etc. In the House - Hearing 2/13 at 12:30 p.m. Given the fact that several localities around the country have passed such laws, I’m a bit surprised this one didn’t get more attention. I’m pleased it didn’t, but surprised.

Noncompete and Conflict of Interest Clauses
Would ban non-compete and conflict of interest provisions that restrict the ability of an employee to enter into employment with a new employer, or be self-employed, in the same or similar business or trade for a specified length of time as being against the public policy of the State. Unfavorable Report by Economic Matters. Ya think?

Nondisclosure Agreements - Prohibition
Prohibits nondisclosure of proprietary information agreements or otherwise create any expectation that a confidential relationship exists with respect to proprietary information. Unfavorable Report by Economic Matters. Another one that left me scratching my head. 

Fair Scheduling Act
Requires businesses to provide employees with a work schedule at least 21 days before the first day the employee is scheduled to work; post a notice at least 21 days before the start of each workweek that shows the start of each workweek, and includes all shifts of all employees, including those not scheduled to work or be on call for that week; notify employees of any changes to their schedule, and provide employees with a new work schedule within 24 hours after making a change to the initial schedule. It would also prohibit an employer from requiring an employee to work hours not included in an initial schedule unless the employee consents to it in writing and would prohibit requiring the employee to find another employee to cover hours he/she is unable to work. Also, an employee can request that the schedule be changed and limit his/her hours to any hours the employee chooses- and the business must consider this and respond in writing with reasons if refusing the "request". The employer also cannot change an employee’s work schedule within 24 hours of the first shift of the schedule. If it does, the employer must pay the employee 1 hour of "predictability pay" for each shift that is changed. I can’t imagine the retail, food service, or healthcare industries staying quiet about this! Unfavorable Report by Economic Matters; Withdrawn. This could have been devastating to many businesses if passed.

Overwork Prohibition Act
Changes the requirement for overtime pay to hours worked over 8 in a day, rather than the current requirement of overtime pay for hours worked over 40 in a workweek. It also would require overtime pay on the 7th consecutive day if the employee has agreed to work 7 consecutive days; works less than 11 hours after the end of the immediately preceding shift, or within the 11 hour period immediately following the end of a shift that spanned 2 days. Also, an employee can decline a request to work more than 6 consecutive days, or work more than 55 hours during a workweek or work hours that occur less than 11 hours after the end of the preceding shift or during the 11 hour period immediately following the end of a shift that spanned 2 days. It’s not like the Fair Labor Standards Act isn’t already pretty complicated to properly comply with. Businesses would no longer be able to require overtime regardless of business necessity. - Unfavorable Report by Economic Matters; Withdrawn. 

Wage Disclosure and Discussion Protection
This bill would prohibit an employer from taking any adverse employment action against an employee in regard to an inquiry about or disclosure or discussion of an employee's wages, or another employee’s wages. It would also prohibit action against an employee who inquires about another employee’s wages, discloses his/her own wages to others or discusses another employee’s wages (if those wages have been initially disclosed voluntarily). The National Labor Relations Act already expressly prohibits employers from disciplining employees from discussing wages, hours and other conditions of work. I see no valid reason to create another cause of action on this issue. In the Senate - Hearing 3/05 at 1:00 p.m. Went nowhere!

In the last several years, where both my job and my other professional involvements and activities required that I pay more attention to employment related legislation on the state level – at least here in Maryland – I’ve seen many of these bills, or substantially similar bills presented year after year, usually with the same result. On the one hand, maybe you can say they never heard the definition of insanity. But despite the fact that they get presented at all, I guess we can all take a little heart in that at some point, sanity returned and they were withdrawn or got no further consideration.