Thought Leadership Blog

The HRS Thought Leadership Blog delivers validated findings, visionary perspectives and op/ed commentaries related to HR, Leadership, Organizational Development and Employment Law. To enjoy the full volume of available articles, please enter topic keywords in the search box to explore our body of work. Articles are regularly presented by the HRS team and guest experts.


A "No References" Policy is a "Welcome" Sign for Employee Bad Behavior

When employees know their bad or good acts won’t follow them, motivation and accountability are adversely impacted. An employer who wants the best of employees knows this and reinforces accountability through both seeking and providing employment references.

Today's employment background checking requires enhanced employer responsibilities to Fair Credit Reporting Act compliance. That being said, proper candidate pre-hire screening remains a due diligent essential. Employees who believe that terrible performance will be kept a "secret" are less likely to deploy adequate self-supervision. If we take the approach “What happens in Vegas…” with our employees, there is too little motivation for them to give us their best. We also miss our opportunity to allow our forgiveness and well-placed "second chances" to build loyalty and incentive.

In many states, employers enjoy specific statutory protection in providing employment references, as long as information is factual, non-subjective, and used in no discriminatory or otherwise unlawful manner. Despite this protection, many employers extend employee right to privacy to employment references. Employers need to carefully control information flow and train all managers in legal compliance. Failure to do so can result in legal consequences. That being said, a published “no references” policy is a hurtful substitute for compliance.  

When seeking references, professional third parties can be far more effective, as the employer can trust information will be collected and used within full legal compliance. The structure, content and tone of inquiry are additionally key to validity.

Where an employer elects to forego employment referencing, both incoming and outgoing, we recommend not only reconsideration but also reasonable discretion. Advertising a "no references" policy is a "welcome" sign for bad workplace behavior. At a minimum, we recommend the avoidance of "no references" language in the employee handbook. Instead, we recommend language limiting who at the company is licensed to handle the inquiries. Many language options are available. Requiring electronic fax, forms or email is a great way to streamline and defer cumbersome activity.

Apprehension to “burn bridges” keeps many of us on our toes. We self-police, we filter and we decide accordingly. The workplace deserves this respect.



Jessica Ollenburg - Monday, January 06, 2014

 





FCRA Compliance Blueprint for Employer Background Checks

The Fair Credit Reporting Act (FCRA) and its effect on employment practices are finding new court scrutiny, case precedents and employer confusion. The following blueprint simplifies employer “need to know” information. 

The Federal Trade Commission (FTC) enforces the FCRA. As of August 2013 the FTC’s Bureau of Consumer Protection advises employers to perform the following steps before conducting a background criminal, court or credit check:

1) Provide the applicant or employee a written stand-alone notice, outside of the employment application, which advises of the pending background check.
2) Gain written permission from the applicant/employee which includes forward moving checks as performed.
3) Certify compliance to the company from which you are getting the applicant or employee's information. You must certify that you notified the applicant or employee and got their permission to get a consumer report, complied with all of the FCRA requirements, and will not discriminate against the applicant or employee or otherwise misuse the information, as provided by any applicable federal or state equal opportunity laws or regulations.

Thereafter, according to the Bureau:  “Before you reject a job application, reassign or terminate an employee, deny a promotion, or take any other adverse employment action based on information in a consumer report, you must give the applicant or employee:

Notice that includes a copy of the consumer report you relied on to make your decision; and
Copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.” 

Giving the person the notice in advance gives the person the opportunity to review the report and tell you if it is correct.

If you take an adverse action based on information in a consumer report, you must give the applicant or employee a notice of that fact – orally, in writing, or electronically. An adverse action notice tells people about their rights to see information being reported about them and to correct inaccurate information. The notice must include:

Name, address, and phone number of the consumer reporting company that supplied the report;
Statement that the company that supplied the report did not make the decision to take the unfavorable action and can't give specific reasons for it; and
Notice of the person's right to dispute the accuracy or completeness of any information the consumer reporting company furnished, and to get an additional free report from the company if the person asks for it within 60 days.”

According to the Bureau, “Employers who use ‘investigative reports’ – reports based on personal interviews concerning a person's character, general reputation, personal characteristics, and lifestyle – have additional obligations under the FCRA. These obligations include giving written notice that you may request or have requested an investigative consumer report, and giving a statement that the person has a right to request additional disclosures and a summary of the scope and substance of the report. (See 15 U.S.C. section 1681d(a),(b)).” 

Additional information is available at…
http://business.ftc.gov/documents/bus08-using-consumer-reports-what-employers-need-know

State and federal courts have recently set case law enforcing these notices and rights of appeal as related to not only agency checks, but also employment references and interviews. Several employers have found themselves embroiled in legal battle, settlements, fines and adverse publicity specifically over failure to notify candidates of their rights to be provided notice or appeal. A few of these found additional EEOC complaint by treating protected classes dissimilarly, thereby creating discrimination. 

In light of these and other risks, it becomes increasingly important to manage incoming and outgoing background check data. Employers who publish a policy denying reference checks will continue to find a demotivation and “What happens in Vegas…” attitude among staff. Employers must control information without avoidance of information.

Employers cannot ignore responsibilities for candidate background checks and have been held responsible for negligence by ignoring reasonable care in hiring. Additionally, bona fide occupational qualifications (BFOQs) remain legitimate hiring criteria. Employers need to conduct these checks lawfully and fairly with consideration to comprehensive risk management.  

Crafting of policies considers the staging of notice, probabilities of disqualification, hiring steps, differentiation in screening among company job descriptions and unique employer compliance strategies. HRS recommends the incorporation of full scale screening permission, most recently including job-specific Internet records research, into the crafted notice. HRS is available for custom crafting of expert policies and permission/notice forms according to unique employer needs and practices.


Jessica Ollenburg - Tuesday, August 13, 2013

 





Candidate Screening by Video Technology Reveals Mixed Success

As global talent assessment experts, HRS has spent many years researching success of video technology use in screening.  We’ve reviewed dozens of platforms and learned from thousands of employers.  Recently, with the continued emergence of videoconferencing use in business, video skills gain importance.  However, screening platforms are still showing flaws.

The first major flaw lies in the difference between skills just being on camera as opposed to actually “addressing” the camera.  These two skills have little or no correlation between them.  Addressing a known audience can be far more comfortable than addressing an unknown (camera) and vice versa.  Even the company’s sales reps appear “frozen” and ill at ease in certain platform demos.   Videoconferencing typically allows the visibility of and interaction with an audience, a different dynamic altogether. As a regular speaker, I find it infinitely easier to “come alive” with dynamics when I have an engaged and participative audience.  A flat, unresponsive audience is a challenge, and often a burden, to an educator.  Entertainers sometimes enjoy that challenge, yet entertainers and educators are two different characters.  Consider the actual video skills requirements of the job, and align the screening dynamic with the job’s parameters.

The second major flaw lies in the platform’s validation.  Some platforms align with the proven concept that the best interviewers often are those who have the most practice. Sales and substance are two different concepts, and for many, these are sadly mutually exclusive.  We researched several platforms which have specifically positioned themselves to major market employers whose keys to success lie in turnover versus employee retention. Not all organizations are talent based. In fact, many large organizations rely upon “plug and play” capabilities which create sustainability without reliance upon specific talent.  The important takeaway here is to find a platform which aligns with your corporate goals for talent lifecycle. You may adopt more than one platform if you do not find an integrated solution.
 
The third major flaw is legal compliance.  While the federal and state governments are mandating appropriate timing to potentially discriminatory data collection, inappropriately deployed video screening can heighten risks of noncompliance.  Structure a program consistent, compliant and true to the job description for best protection. These are the same risks discussed in our teachings on social media use in screening.

The fourth major flaw lies in BFOQ test of reason.  Unless a bona fide occupational qualification (BFOQ) is prominent, the screening technique is at risk.  If video skills are not necessary to the job description, do not consider video skills in the screening.  How people present in person, in writing, via telephone and via camera are all unique characteristics independent of one another.

HRS has pioneered telework principles and use of global technology for decades.  We understand the benefits and the risks. Many technology options are available, appropriate to individual job requirements.  Video may or may not be the solution, and please adopt the platform which truly represents your best interests.  We use video technology often… but selectively according to the actual job requirements and career path lifecycle.  Detailed research is available from HRS.

 


Jessica Ollenburg - Tuesday, June 14, 2011

 





Social Media Investigations May Be Essential to Hiring and Can Be Conducted Lawfully

Some attorneys will advise employers to avoid using social media as a recruitment and screening tool.  The caution is wise; however, avoidance may be impractical, and the proper use of social media can most definitely pay off.  In many cases, we consider it actually necessary. While risks of unlawful use exist and need be avoided, bona fide occupational qualifications can be investigated through proper methodology.  The following 3 rules are set forth to simplify legal compliance.

1) Timing is everything.  The EEOC is often more concerned about the timing and outcomes of collecting data than the collection of data itself.  That is, we know certain visual characteristics when we interview or videoconference a candidate, yet premature collection and use of this data is considered unlawful “profiling.” The investigation of social media after interview is typically safer than prior to interview.  A company that shows reasonable care and great diversity in demographics and advancement provides substantially stronger affirmative defense than a company with insufficient diversity and/or without reasonable care compliance. Protected characteristics are found not only in the Civil Rights Act of 1964 but also in the legal changes and state regulations emerging ongoing.
 
2) Bona Fide Occupational Qualifications (BFOQs) are still considered a lawful job requirement subject to reasonable investigation. How a candidate presents his/herself to the general public and company stakeholders is a legitimate public relations and credibility concern.   While off duty behavior may or may not be appropriate to monitor and discover as a BFOQ, how a candidate chooses to be known on the Internet as searchable by customers, co-workers, competitors, associates, vendors, investors and other stakeholders, is certainly a BFOQ.  Such a presence affects on duty performance, especially when easily detected by search engine or links to professional or company presence.  A great job description and strong company policies will validate social media investigations.
 
3) Outsource investigation and/or control consistency and chain of information.  HRS policy establishment, training and candidate investigation services are currently booming.  While we are biased that no competitor meets our standards, please know resources abound for outsourcing implementation or procedural design as risk management. If choosing to insource the effort, control documentation and custody of information. Appropriate policies and disclosures should be considered.  One size does not fit all here.  Social media usage and monitoring policies should match the company’s unique practices.  And, although the candidate may choose the “world wide web” to air private and personal information, the employer must remember to not further the information distribution except on a “need to know” basis. Use of search engines to collect data is recommended.  The method of collecting data should align with reasonable access to information by company stakeholders.

The appropriate use of social media in hiring provides cost-effective recruitment, often with cost savings or targeted candidate access impractical to ignore.  However, the very nature of recruitment via social media could grant us access to candidate social media profiles too soon. To use only social media for recruitment, in certain cases, may in itself be considered discriminatory.  Audience demographics should be considered to both control costs and to also ensure abidance with Affirmative Action Plans where they exist.

It is difficult to investigate certain social media sites, especially those of a personal rather than professional focus, without receiving information regarding age, race, nationality, military, family status, sexual orientation, religion, or some combination of the many, many lawfully protected characteristics.  Pictures, comments, links, interests and profile page data cannot be reasonably avoided. To better manage risks, we suggest directing the candidate to the company’s own application system rather than linking the recruitment response with the candidate’s social media profile.  Such a step allows the company to broadcast the recruitment via social media but to collect responses through traditional methods discouraging profiling. 

Upon reaching the correct stage and method of data collection, be certain to avoid risk of error and falsehood. Identities can be confused, and inaccurate information may be collected.  Be certain you have the correct individual, and be certain the information is true. Background check permission forms should collect necessary data to validate identity. HRS recommends and designs a sequential plan of using social media investigations lawfully, consistently, with proper timing and privacy controls toward the appropriate evaluation of BFOQs.  As an added safeguard, it is popularly recommended to involve an outside firm or an individual not participating in the employment decisions. That individual or firm should then be in position to report only on job requirements and BFOQs, thereby inherently controlling the distribution and use of data.

 

 


Jessica Ollenburg - Thursday, February 24, 2011

 





Your Consulting Firm May Be the Very Last Job on Your Resume

Some believe filling resume gaps by labeling or creating a “consulting” firm is a positive resume builder.  More often than not, this adversely impacts one’s ability to be re-employed.  To set oneself apart as a freelance “consultant” or company owner can be synonymous with setting oneself apart as averse to taking direction from another… a statement likely to create de-selection from employment opportunities.  Top employers will also investigate the legitimate success in engagements during this “consultancy” time period on one’s resume.     
 

When choosing to be a consultant, know beforehand it is not all glamour and glitz.  A corporate career as an internal key member dedicated to one corporate environment at a time is NOT preparation for consultancy.  Successful consultancy requires the proven ability to simultaneously serve multiple unique organizations through analysis and adaptation... and deep knowledge of multi-employer case studies.  Serving one or a few selectively chosen organizations is not necessarily preparation for consultancy.  Conversely, consultancy is not necessarily preparation to become an internal expert. Deep knowledge of that organization is the only preparation for that role.
 

Consultancy requires reporting to many “bosses.”  It is a myth that one can succeed in consultancy without subordination.  While it is true that many employers are drawn to candidates who have demonstrated the responsibility and ambition of starting a business, employers of choice will carefully screen this situation and select/de-select candidates accordingly. 
 

If not prepared to forever risk livelihood, think twice before abandoning the safe route of remaining steadily and stably employed, creating documented successes as an employee. Embrace consultancy for what it truly is and understand that a great consultant is never “in between jobs.”


Jessica Ollenburg - Tuesday, September 14, 2010

 





Choosing Employee Assessments … Hand Scoring Still Safeguards Findings and ROI!

With a wealth of employee assessments emerging, the right assessment can seem as elusive as the proverbial “needle in a haystack,” yet absolutely worth the diligent hunt. Best practices deployment in this specific arena increases human capital ROI by tenfold plus. The bottom line results of assessments gone right is not contested, and we stand firm that every candidate hired, trained or promoted without this proper intelligence is a profit opportunity missed. And coming from staunch advocates of progressive technology… computers are no replacement for hand scoring. A five criteria process, the following roadmap guarantees ROI and avoids common pitfalls. 
 

1. Tailoring instrument selection to specific job requirements.

Ensure the assessment criteria are documented in the job description itself. Consider both the immediate position and requirements along the progressive career path. Separate the two, and consider realistic expectations for advancement. Creating a business model where every team member is worthy of quick advancement can be risky and inappropriate unless your business can keep each of them advancing swiftly. Most organizations are pyramid shaped where not everyone can move up… accordingly, too many advancement worthy candidates creates damaging turnover. Additionally to ensure legal compliance, give greater weight to characteristics validated BFOQ’s (bona fide occupational qualifications) to the immediate job, without disparity. To safeguard meaningful interpretation and to prevent legal challenge, strictly avoid personality profiles and psychological profiles. Steer clear of interest-based surveys, as results are tainted by the human flaw of erroneous self-perception. We recommend job-related in-baskets and business simulations which specifically showcase and predict results-oriented business behaviors.  

2. Controlling environmental variables for meaningful consistency and reliability.

Deliver assessment in an environment which corresponds to assessment norms as well as the actual job environment. For example, online delivery is best when measuring computer-based job performance. Online delivery falls short of measuring in person performance. Online and written instruments presuppose communication skills using those media. Multiple choice vs. essay, written vs. verbal, time limits, noise factors, environmental conditions, fatigue, comfort, and stress levels are all further examples of variables which affect assessment performance. Allow the assessment organization to create and/or control the assessment environment and its variables. A distinguished partner will have this automatically safeguarded, but please inquire. 

3. Ensuring validity.

Gain confidence in the business results and overall organizational development success of your assessment team and assessment developer. Validating scores against existing organizational top performers is not enough. One of the most common pitfalls, this says absolutely nothing in validation of the elimination rate. Many instruments are currently circulating at which your top performers will always perform well. Be certain those you eliminate have been eliminated for good reason. Creative thinking and unconventional ideas are the cornerstone to progress and competitive edge. Do not keep these attributes excluded from your organization.  

4. Hand scoring and personal feedback are still preferred.

Again addressing the need to engage progress, invention and creative problem solving… computer and/or empirical scoring just does not cut it. Exploring rationale and allowing interpretation are critical to meaningful methodology. Simply stated, there is nothing less common than sense. Valuable creative thinking is often specifically excluded from organizational entry unless expert multi-rater hand scoring is involved. Hand scoring and personal feedback each explore rationale and trainability, while exiting the candidate with a blueprint for advancement and improvement. Personal feedback is best delivered by an external assessor expert.   

5. Using organization-wide assessments in consideration of unique independent job descriptions.

Selection by assimilation is rarely the goal. A glut of like-minded people does not typically foster progress or invention. Embrace differences and deploy them to the correct opportunities. There are a few assessments, the SR2 for example, which can be gainfully implemented organization-wide; however, we recommend weighting mechanisms and scoring norms to consider job relatedness. Validation to both external and internal norms is to be ensured.

In the quest for cost containment and convenience typically achieved through progressive technology, one can be quick to overlook the occasional “old school” best practices. The cost of employee time and the likely payoff of increased productivity with waste avoidance need be factored into assessment ROI. Look to the substantive results and know-how, not glitzy sales, of assessment experts. Pursue experts offering a healthy catalog of instruments tailored to unique job descriptions and criteria, and you shall find experts committed to valuable guidance in pinpointed assessment selection. The sustainable success of any talent-based organization relies upon correct, comprehensive and consistent deployment of employee assessment as decision tools.


Jessica Ollenburg - Friday, April 30, 2010