The HRS Thought Leadership Blog Conveys Findings, Best Practices and Unique Perspectives Related to HR, Organizational Development and Employment Law.
Update: Shortly after this article's publication, the US Federal Government announced a one-year delay of certain ACA mandates including the "pay or play" component. According to the US Government, employers and individuals are still responsible to "pay or play" as of 1/1/2015. Follow-up articles shall be posted as developments unfold. eNews offers interim updates as certain employer mandates are currently in force.
As employers sift through immediate and forward moving impact of the Patient Protection and Affordable Care Act (ACA, PPACA or “ObamaCare”), we consulted with nationwide ACA experts to provide a quick blueprint of action items, FAQs and debunked myths. In respect to our expert unbiased objectivity, HRS employer clients have been asking us for credible and clear answers on this topic.
While some employers still believe they have until 2014 to make decisions, a more practical deadline is October 1, 2013, when health exchange notices need distribution to employees. Once these notices hit, employee questions will abound, and the risk of providing inaccurate or unsavory answers will impact employee retention, engagement, productivity and legal compliance. With employee access to health exchange, employer programs will find heightened scrutiny and explanations must be ready. In addition to impact upon talent resources, employer failure to meet ACA guidelines will result in substantial fine. While employers initially pledged to “pay” are shifting to “play,” due diligence is essential to “play.”
With minimum coverage covenants higher than ever before, minimum premiums are expected to increase as well. Employers are encouraged to anticipate this perception gap and to strategically educate employees as to the comparison between employer-sponsored and health exchange coverage. Summaries of benefits and coverage (SBCs) will not be enough to address this topic.
Matthew Weimer, Director of Employee Benefits Operations for Diversified Insurance Solutions, advises employers to prepare for employee surprise once the exchange opens. Weimer advises that many individuals are expecting exchange premiums to be lower than they actually will be, and an opportunity for an employer “win” is present.
Karen McLeese, JD, Vice President of Employee Benefit Regulatory Affairs for CBIZ Employee Services, Inc., advises employers of all sizes to “work with insurers, TPAs, benefit consultants, brokers and other advisors to ensure compliance with all ACA market reforms.” McLeese further advises to be prepared to deliver notices to all employees, not just those covered by the health plan, by October 1, 2013; to be familiar with single source market place applications; to ensure summaries of benefits and coverage (SBCs) are properly distributed; and to properly classify and count workers. HRS, Diversified and CBIZ are addressing these mandates by providing guidance as to crafting exchange notices, counting employees, educating team members and selecting plans to meet affordability standards.
The relentless politicizing and profit taking on this topic have created mistrust and frustration among employers, so HRS has stepped in. We have no vested interest in insurance program sales. Our interest and reputation are tied only to accurate top shelf information and legal compliance standards. We have additionally invited adjacent field experts who have responded with transparency and integrity to our news campaign.
While arguments abound, opponents of the Act assert that the “Patient Protection” provisions can be mutually exclusive to the “Affordable” provisions, and employers need to address this concern. Some employees will undoubtedly be forced to buy more coverage than perceived necessary. Whereas the counter-argument is that these forced coverage levels will ultimately decrease overall health care costs, we cannot ignore and must address the initial sticker shock. Along that same line of thinking, Weimer addresses that many of his insured clients are already electively providing coverage levels that exceed ACA standards, and therefore, when employee premiums exceed health exchange premiums, the gap must be addressed to safeguard employee trust and engagement. Under affordability standards the employer must absorb the majority of premium costs, and therefore, while employees may pay higher premiums through the employer, it is imperative that they fully understand the value received and that the employer is absorbing the majority of excess benefits costs.
Employers were justifiably concerned by the initial ACA language which required employer review of “household income” in determining affordability. Not only did this pose an infeasible burden of costly administration but also a grave concern over privacy rights and employee discomfort. Affordability measurements have been thankfully addressed by updated calculation methods to include the W-2, rate of pay and federal poverty line (FPL) methods. These investigations are simpler, less invasive and consider only employee income rather than household income. As the federal ACA regulations shift substantial administrative burden to individual states, HRS urges employers to research state regulations and not just the federal. As the federal regulations do not protect spousal coverage, look to states for spouse and domestic partner rights.
Employers will choose plans based upon overall compensation scheme, labor intensity and workforce demographics. Benefits should be tailored to unique team attributes and perceived needs. Several HRS clients are employing primarily young, entry level, and therefore typically healthier teams who prioritize basic health but would rather receive other forms of compensation over benefits plan upgrades. For these employers we suggest consideration of a Minimum Value (MV) plan offering optional buy-ups. By deploying this strategy, the employees see premiums competitive to the exchange but also see their employers willing to absorb costs toward employee-elected upgrades. Employers who determine to trade plans down without proper employee education will likely find disaster rather than reward by this practice. “Design your health plan in such a way as to facilitate attracting and retaining your employees. Design the program to maximize personal engagement.” advises McLeese.
Some of the most common pitfalls will likely be linked to employer size, affordability and minimum value coverage. Small businesses (less than 25 FTEs) are offered conditional tax credits but not for business owners. Large businesses (50+ FTEs) will be fined for offering inadequate coverage. Minimum Value (MV) and Actuarial Value (AV) are impractical to calculate for most employers, and therefore working with insurance brokers and carriers you trust becomes more important than ever before. Safe harbor rules allow employers a small margin of error. Weimer advises employers to look to carriers for proper disclosure of MV and AV data. He tells us Diversified is overseeing these calculations for insured clients. McLeese adds that employers should properly classify employees as a new hire routine and to “work closely with a payroll provider who can assist in these recordkeeping requirements.”
Matt Weimer, Karen McLeese and HRS are all addressing proper FTE calculation methods. Weimer and Diversified have released a webinar rich with affordability calculators and employee counting rules. McLeese adds to these metrics a few cautions, including proper classification of employees versus independent contractors. HRS advises that improper 1099 classification is suffering more scrutiny and penalty than ever before, and not just with regard to ACA guidelines but also overall taxation and FLSA compliance impact. McLeese summarizes “Determine which employees are full-time, part-time, variable or seasonal. Decide whether to take advantage of a look-back (measurement) and stability period, and if you're not using a measurement/stability period, analyze status each month.” “Know your shared responsibility risk. How many full-time employees are offered minimum essential coverage? Is it affordable? To avoid a penalty risk, offer adequate coverage at an affordable rate. It is the offer, not the take-up rate, that matters,” continues McLeese.
McLeese recommends to “Establish a wellness program that promotes health and well-being; and ensure it is compliant with new ACA rules. If a wellness program currently exists, review it to ensure compliance with new ACA rules.” The ACA addresses wellness programs, and Weimer adds that wellness, HRA and HSA programs are under current review for their rightful position in coverage ratio calculations.
ACA guidelines will continue to address access and will require annual open enrollment for employer-sponsored plans. Employees will need to be offered health exchange notice within 14 days of new hire following group notification by October 1, 2013. Many employees will not be eligible to purchase insurance on the exchange but must be advised by employers as to availability for application.
HRS is addressing the Affordable Care Act with three new dedicated initiatives: 1) PPACA News Campaign, 2) Individualized Employer Workshops, and 3) Employee Education Tools. We remind that much of law is based upon case precedents rather than statutory language. Look for PPACA to be taking shape for years to come. Please consider us a resource, and stay tuned for more information.
Matthew Weimer is Director of Employee Benefits Operations for Diversified Insurance Solutions. Matt’s extensive insurance industry knowledge and leadership helps to keep the entire benefits department abreast of legislation. He is Diversified’s Health Care Reform onsite expert and sits on the Board of Directors for the Independent Insurance Agents of Wisconsin (IIAW) along with several other industry and legislative committees. Matt has served on a number of advisory councils for the Wisconsin Office of the Commissioner of Insurance and still meets regularly to discuss state and federal insurance regulations. Matt holds a Bachelor of Arts degree in Business Administration and Marketing from Carthage College.
Karen R. McLeese, J.D., is Vice President of Employee Benefit Regulatory Affairs for CBIZ Employee Services, Inc., a division of CBIZ, Inc. McLeese serves as in-house counsel with particular emphasis on monitoring and interpreting state and federal employee benefits law. She follows and analyzes trends and provides information and technical support in response to technical questions regarding employee benefits. McLeese is a member of the Employee Benefits Committee for both the Kansas City Metropolitan Bar Association and the Missouri Bar Association. She is also a member of the Health Law Forum and the Labor and Employment Law Section of the American Bar Association. She has spoken professionally on wide variety of topics related to employee benefits, including HIPAA, COBRA, Welfare, Medicare, FMLA benefits. McLeese serves as an editorial board member for the publication Benefits Law Journal and is a graduate of Notre Dame and Duke Universities.
Article by Jessica Ollenburg, HRS Senior Executive Consultant & CEO. Summary bio.
FMLA, ADA, Disability and PTO (Paid Time Off) leaves require proper sequencing in avoidance of fiscal waste, unlawful activity and costly confusion. While there are certain acceptable conditions under which paid leave can be substituted for FMLA, HRS recommends sequencing leave with clear consistent policies. As it is unlawful to penalize an employee in any way based upon his or her proper execution of legal rights or benefits, keep it clean and risk free. Beyond PTO and where permitted by law, leave concurrency should be clearly stated and practiced with consistency.
In terms of medical and disability leave, employers are strictly accountable to FMLA and ADA according to company size, location and unique definition of “undue hardship.” Employers must create a distinctive policy whereby employee receipt of disability benefits does not necessarily constitute approved disability leave. Consider the elective disability policies available. While these may be a smart purchase for employees, employers must be consistent with available leave and need not recognize these private purchases as employer mandates. A few sentences in the employee handbook and a consistent practice accomplish these goals quite nicely. Workers’ compensation lost time is treated in accordance with FMLA, ADA, DOL, EEOC and company leave policies.
Customize a PTO policy which addresses your company’s unique needs. Consider benefits for using PTO during company preferred times such as periods of less activity. Contemplate blackouts for PTO during bottleneck activities. Take into account the minimum and maximum length of absence preferable, and structure a written policy in advance accordingly. Having created a custom policy that appropriately addresses unique company wishes, many employers will find value in requesting use of PTO prior to any unpaid leaves. Remember that legally entitled leaves require certification. That is, when you have a finite amount of leave certified, this needs not extend the total leave amount, and everyone wins. Most employers will find the following sequence most beneficial: PTO >> FMLA >> ADA Extension (if applicable) >> Company Elected Medical or Disability Leave (if any). ADA extensions are still being shaped by case precedents, whereby 30 days beyond FMLA was recently determined a maximum.
Any company elected leave not legally mandated should be titled as such, creating clear distinction as to what is legally mandated and monitored and what is not. It is most definitely a lost opportunity to create company elective leave without proudly announcing this generosity of this benefit to treasured team members. This announcement can optimize engagement and employer brand equity.
The legal compliance professionals at HRS are on call for policy establishment and implementation guidance. Please consider us a valuable resource to any of the topics mentioned herein.
The Department of Labor tells us they are overwhelmed, understaffed and shifting additional burden to employers for employment law compliance. This can be a great deal for the average employer to undertake. HRS has taken some time to prepare a quick “how to” blueprint for employers.
P3, also called “Plan/Prevent/Protect” or “P Cubed,” will require every entity covered by the FLSA, OSHA, OFCCP, and MSHA to make written plans ("Plan"), create processes ("Prevent"), and test the processes with designated compliance employees ("Protect").
The following guidelines create a simplified and sustainable P3 protocol:
Review not only government postings, but also secure a 3rd party compliance expert as needed and for annual overview. Our “overwhelmed” government states outright there is no government responsibility to educate employers. Enforcement is their responsibility, however, and fundraising is high. Case precedent law is just as impactful here as statutory law. While it is necessary to be a member of the Bar to litigate or serve as “officer of the court,” it is not necessary to be a member of the Bar to be a legal compliance expert. Full-time research commitment is essential for such expertise.
Beyond the immediate intellectual property law threats, other employers are not recognized as experts. “Because Company X Did It” is not a reasonable defense. There are some terribly non-compliant practices circulating out there like “old wives’ tales.” Even policies that actually work for one company may not work for yours.
Maintain records to prove either experts consulted on or approved your policies… or if self-constructed… save expert resources and statutory evidence as future “reasonable care” affirmative defense. Use scenario planning to create and document activities which defend the company against complaint. “Willful violations” pose the greatest threat. Negligence and lack of attention can be considered “willful” acts.
Knowing what to keep and for how long as well as what not to keep are essential. Knowing who can have access and how to use this information without breaching privacy laws or risking discriminatory complaint are equally essential.
With the overuse of “cookie cutter” policies, many companies are unaware that better policy options exist. Regardless of genesis for your policy, track outcomes to ensure it is working for you and not creating adverse impact or unlawful side effects. Designate specific individuals with reasonable ongoing access, and empower them with job description authority to monitor policy success.
HRS offers extraordinary legal compliance expertise, P3 design services and further information on any topic herein. Consider an HR certification audit as proactive P3 compliance. ROI is exponential.
Private businesses and employers in 12 states to most recently include Wisconsin are faced with the decision to allow concealed weapons carry on company premises. The argument against banning weapons lies largely in the statistics and in the liability. The argument for banning weapons lies largely in perception of safety and in the ability to attract, retain and engage a productive workforce comprised of people unaccustomed to concealed weapons carry and its perceived threats.
Legal counsel and insurance underwriters are largely recommending employer silence on this issue. Silence allows lawful carry without interference. The US Library of Congress reports crime reduction in every state enacting Concealed Carry. Violent crimes are reduced 5-22%. The most popularly referenced FBI report utilizes a 7% reduction statistic.
As a global firm, we have had the opportunity to work with many states across the nation prior to Wisconsin’s recent Concealed Carry enactment. With a second hub in AZ and service to the Scottsdale Chamber’s Public Policy Advisory Council, we are no strangers to public weapons carry and private business rights to “Opt Out.”
Wisconsin employers are inundating us with questions, and we are pleased to provide an extraordinary knowledge base here. At the time of this report, the state of Wisconsin is not protecting employers from liability if choosing “weapon free zones.” Specifically, if an individual is harmed because he or she was not allowed to carry weapon per lawful right, the company can be held liable. Additionally, it is argued that the posting of “no weapons” signs specifically attracts crime similar to a resident posting a sign “not monitored by security system.”
The argument for banning weapons lies largely in the perception of safety and records of specific incidents. While statistically it is argued that crime is reduced by arming law abiding citizens, the fact remains that with concealed carry acts, individuals who shouldn’t be licensed still manage to get licensed. It is also evident that individuals use poor judgment in what constitutes “self defense,” improperly trained individuals gain access to weapons and accidents happen. What stings in minds are images of Columbine, Virginia Tech, “going postal” and a wealth of related tragedies. For many these images outweigh statistical probabilities and facts. Most are not aware of this report… among 25,000 2009 murders, less than 1% were committed by concealed carry permit holders.
Businesses which allow concealed carry on their property are immune from liability arising from that decision. Employers who choose to allow concealed carry without interference will adapt by removing policies and handbook language which prohibit the carry of weapons on premises. However, we recommend substituting this language with the requirement that weapons must be lawful and licensed.
Employers who choose to “opt out” will create a “weapon free zone.” Employers may choose to prohibit concealed carry during work activities, and if they do so, then language must be modified and signs must be posted. The sign must:
• Be at least 5 inches by 7 inches.
• State that concealed or open firearms are prohibited in the building or on the premises.
• Specify the area to which the prohibition applies.
• Be placed in a prominent place near all of the entrances to the part of the building to which the restriction applies or near all probable access points to the grounds or land to which the restriction applies, as applicable, where any individual entering the building, grounds, or land can be reasonably expected to see the sign.
• Businesses should consider the universal “no” symbol of a circle around a picture of a firearm with a slash across the middle of the circle, indicating that firearms are prohibited.
An employer may not prohibit an employee, as a condition of employment, from carrying a concealed weapon in the employee’s own motor vehicle, even if the employee uses his or her vehicle in the course of employment or if the motor vehicle is on company grounds. Some employers are creating a policy that vehicles containing weapons on company premises must remain locked at all times.
HRS is active in helping craft and/or review employee handbook policies on this matter. For those who wish to “opt out,” the sample “Weapons Ban” policy to follow is one of the alternatives available. Customization may be expected.
The company complies fully with all applicable federal, state and local laws to include the Concealed Carry Act. Weapons and firearms of any type are strictly prohibited within company premises at all times. Company premise includes property owned, leased or controlled by the company. Company premises also include anywhere that company business is conducted, such as customer locations, vendor/associate locations, trade shows, restaurants or any venue visited for the purpose of business. Weapons include, but are not limited to, guns, knives or swords with blades over four inches in length, explosives, and any chemical whose purpose is to cause harm to another person.
Regardless of whether an employee possesses a concealed weapons permit or is allowed by law to possess a weapon, weapons are prohibited on any company property or in any location in which the employee represents the company for business purposes, including those listed above.
Possession of a weapon can only be specifically authorized by a company officer to allow security personnel or a trained employee to have a weapon on company property when this possession is determined necessary to secure the safety and security of company employees. Only a company officer may authorize the carrying of or use of a weapon within company premises. Any violation of this policy or federal, state or local laws which relate to weapons shall also result in immediate discipline up to and including termination.
Templates exist for best practices job descriptions. Some templates hit the mark and others fall short. Our article outlines the minimum goals to be attained by job description creation as well as some helpful guidelines to writing a custom description. Rarely can an organization pull a job description "off the shelf" from another organization and apply it without essential modification. Consider a job description model only a starting point and invest the effort into customizing the instrument to your organization and your unique job. The exercise of doing so offers value in itself.
For starters, let us explore the goals. A strong job description will...
Job Analysis should involve both incumbent employees and their supervisors. Not only should the tasks and position goals be documented, but in crafting and weighting such considerations, the keys to success and risks of failure should also be considered. The consideration and the documentation of facts are two different things. The final product will be edited and filtered for content and purpose. As an example, we document what an employee is responsible to do to avert problems, but we do not necessarily document the potential problems themselves.
Typical categories of information include Job Title, Immediate Supervisor, FLSA Status, Mission/Summary, Essential Tasks & Responsibilities, Supervisory Responsibility, Job Requirements, Working Conditions, Physical Demands, Skills & Learning Goals, and Disclaimer of Management Ability to Modify. Some descriptions may include Department, Pay Grade, Work Hours, Location/Site Travel and more.
When crafting language, measurable benchmarks must be present to ensure the standards are meaningful and reliable. Legally compliant language is essential to ensure compliance and perception of compliance at every stage of employment. Desirable behaviors should be documented in detailed description. While some label behaviors as"soft skills," successful leadership recognizes that behaviors drive results often more than skills do. Behaviors need to be measured both on the job and at pre-employment assessment. The HRS Assessment Center supports just that! Owning a characteristic is not as important at appropriately deploying that characteristic when it counts. In order to pay a bill, one needs not only to have the money but also to write the check.
Job analysis questionnaires, sample job descriptions, outsource assistance and more information are available from HRS. We wish you great success with your project!
Fueled by ADA, FMLA and countless ever-changing statutory concerns, employer confusion has sparked over-generosity. Employers are giving against their will and caving in beyond necessity. While competitive offerings remain critical to attracting, engaging and retaining the right talent, benefits that reach the greatest number of top performers are most valuable. Disability benefits may or may not be integral to that mix, specific to the overall company offerings and keys to success. Disability leave, disability law and disability insurance are each distinctively different topics. Accordingly, we have taken time to debunk the myths and blueprint the actual requirements.
ADA Leave: Recent legal precedents validate that employers need not provide “indefinite leave” nor any disability leave that produces “undue hardship.” According to circumstance, four weeks beyond FMLA entitlements has been a typical benchmark for ADA leave.
Employee Paid Disability Premiums: Where the company does not pay premiums or administer benefits, such disability insurance plans may be exempt from company benefit rules. While it is unlawful to penalize employees for the allowable use of company benefits, benefits not provided by the company may be carved out. Written distinction is mandated through a well-crafted policy.
Advance Notice: Wage, hour and employment laws are quite clear that while an employer may be granted certain latitude in practice, advance notice to employees is critical to legal compliance. Burden rests upon the employer to provide clear advanced notification of policies. Again, a well-crafted proactive policy satisfies this requirement.
Benefits During Leave: The company needs not pay benefits during leave not legally mandated. In fact, the same is true during certain legally mandated leave. Employers may craft policies that stipulate leave to be employment separation. Such leave can then have its own consistently applied definition, eligibility for rehire and seniority recaptured, if so desired, upon rehire. Employees are eligible for COBRA as of the employment separation date, which becomes the qualifying event.
As with most employee handbook policies, one size does not fit all here and legal compliance can be complex. HRS is available to weigh situations on their own merit and customize policies to unique company practices.
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.
This year’s most popular goals of employers large and small are to manage new legal risks, reorganize staff for best efficiency/future growth, and manage human capital for improved cost savings. The following checklist provides framework to suggested 2011 initiatives.
More than 20 areas of statutory and case law have changed in the last year alone. Government audits can newly be random rather than triggered solely by complaint as before. Fines are a vehicle for government fundraising. Employers must not only get compliant as cost control but must also gain reasonable care certification from 3rd party expert analyst. New ISO practices are emerging for HR. Discreet compliance reviews are available to provide essential investigation plus affirmative defense certification. Avoid using non-profits in this role as they are not lawfully eligible to advocate on your individual behalf and can only advocate for their memberships on the whole.
With the wealth of HR/OD resources available, the best way to safeguard your HR initiative is to ensure no idle time and to ensure you have secured the appropriate change management resources. This is not a time for old school thinking and rote maintenance behavior. This is time for invention and transformation. Have full time resources for full time needs maintenance. Draw upon external experts to suggest and design change.
Deploy testing that predicts employee performance and learning needs throughout the life cycle: pre-employment, advancement, change, trainability and exit, at a minimum. Personality profiles do not get that done. In baskets, role plays and job simulations provide meaningful data. Expect at least a 100:1 return on your investment. Reject instruments that fall short.
Leaders who burn out or who miss opportunities to transform others are toxic to your environment. Leaders should be seen learning. Trainers should be seen learning to train. Leading and training are not “common sense.” Commitment to external education sources is critical, but speaker seminars are the least effect learning venue. Consider learning workshops in your environment at which real-time case studies can be explored and resolved to better apply learning and safeguard time away from work.
Proactive solutions are typically 5-10% the cost of reactive solutions. Accept that what is past may or may not be prologue.
External resources can provide outstanding facilitation to these action items, and please think of HRS during your proposal process. 3rd party objectivity, specialist research, multi-employer relevant case studies and flex talent bring value added your internal time simply is not licensed to bring, no matter how competent and no matter how dedicated. The collaboration between internal and external talent is a powerful force.
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.