Upcoming Installments of The Proactive Employer Podcast: 4/23 - 5/17

Upcoming Installments of The Proactive Employer Podcast: 4/23 - 5/17

Friday, April 23: In this installment, we will be discussing FLSA and the fluctuating work week with Richard Tuschmann. Mr. Tuschmann is a labor and employment attorney in the Miami office of Epstein Becker and Green. He is the co-author of the blog "Florida Employment and Immigration Law Blog" and editor of Epstein Becker and Green's "Wage and Hour Defense" blog. He is a frequent lecturer on employment law issues and is a regular contributor to Thompson Publishing's "Employer's Guide to the Fair Labor Standards Act".

Friday, April 30: In this installment, I will be highlighting some of the top issues employers should be following to stay compliant and out of the courtroom. Top issues include recruiting and hiring, social media, Employee Free Choice Act, FMLA, ADA, heathcare reform, FLSA and independent contractor classification.

Friday, May 7: In this installment, we'll be discussing what recruiters need to know about the Uniform Guidelines of the Employment Selection process and their liability for discrimination in selection. Our guest for this installment is Karen Mattonen, an experienced recruiter who operates her own business - Advanced Career Solutions - and is actively involved in many industry organizations and activities. She is the co-host of the podcast "The Recruiters Lounge".

Friday, May 14: In this installment, we'll be discussing social media and what employers need to know with Eric Meyer. Mr. Meyer is an attorney at Dilworth Paxson. He concentrates his practice on litigating and providing counsel to employers throughout the mid-Atlantic region on labor and employment issues affecting the workplace. Mr. Meyer's experience also includes preparing social media policies, and he has been quoted on such policies in Business Insurance and ABCNews.com.

Are Poor Project Management and Recruiting Practices Contributing to Gender Discrimination?

Are poor project management and recruiting practices contributing to gender discrimination at high-tech firms? Ellen Messmer, of Network World, thinks so. In her post Gender Discrimination Linked to Poor Project Management, she states that 'tech firms rely excessively on a 'hero mindset' to save runaway coding projects that are poorly organized, and employees with family responsibilities -- often women -- are sacrificed as a result."

Her conclusions are based on a new study by the Anita Borg Institute for Women and Technology. The study, "The Recruitment, Retention, and Advancement of Technical Women: Breaking Barriers to Cultural Change in Corporations" alleges that there is also bias against women in recruitment and job assignment in high-tech corporate cultures that thrive on this 'hero mindset'.

Ms. Messmer states that "this fly-by-the-seat-of-your-pants workaday world represents a pattern that's grown mainly because an organization 'poorly defines requirements and project management'." Ms. Messmer paraphrases a portion of the Borg report, stating:

"Silicon Valley's sometimes frantic fire-fighting pace and in-your-face communications style produce many technical cultures that 'leave women feeling isolated and crushed', according to the report."

The Anita Borg Institute is proposing some recommendations aimed at eliminating gender bias at high-tech firms. One of these recommendations is based on the finding that women are eliminated in the hiring process at the resume-reviewing level. The Institute proposes that companies might consider interviewing all women candidates.

While it may be the case that gender discrimination exists in recruiting, hiring, and job assignment, interviewing all female candidates is not the solution. I think that this is a very inefficient solution that would most likely have little effect on reducing any gender bias in hiring.

A better solution is to have clearly defined job descriptions with well-articulated qualifications. Each candidate should be objectively assessed against those qualifications.  In order to assist with this objective assessment, an organization may want to remove any information that would identify a candidate's "protected class status" and create a redacted 'candidate profile'. The 'candidate profile' would provide all information about education, qualifications, previous experience, and other pertinent information used by the organization in evaluating a candidate. This 'candidate profile' would then be passed along to hiring managers and decision makers. It should be noted that this is also an effective strategy for organizations that rely heavily on recruiting from social media; social media profiles tend to provide protected class information which should not be considered in the hiring process.

If a candidate is rejected at the 'candidate profile' screening phase, the reasons for this decision should be documented. Documentation of the objective rejection reasons, such as failure to meet minimum education or certification requirements,  is perhaps one of the most important things an organization can do. Not only does it create a permanent record of the rejection reason, it forces the hiring manager or decision maker to clearly articulate the reason(s) for which the candidate is rejected.

The creation of a 'candidate profile' will not guarantee a bias-free hiring process. There is still the opportunity for hiring managers and decision makers to introduce bias at the interview stage, either consciously or subconsciously. It is, however, a step in the right direction.

Recap of Wednesday's Webinar 'Using Social Media for Recruiting? Beware Disparate Impact"

Today's installment on The Proactive Employer podcast is a 15-minute recap of the webinar from 2/9/10. To go along with that podcast, I thought I'd make the handout from my webinar available to everyone. Enjoy!

Using Social Media For Recruiting Handout ( S Thomas)

View more documents from Equal Employment Advisory and Litigation Support Division of Minimax Consulting.

Launch of 'TheProactiveEmployer'

Today, on the one year anniversary of the signing of the Lilly Ledbetter Fair Pay Act, I am pleased to announce the launch of my BlogTalkRadio show / podcast, 'The Proactive Employer'.  The aim of the program is to provide information on employment and HR best practices, compliance, self-auditing, and employment litigation risk assessment and risk management.  'The Proactive Employer' broadcasts each Friday at 8:30 AM Eastern, and presents a fifteen minute segment.  Please keep in mind that I am an economic and statistical consultant, not a lawyer, and the information presented in 'The Proactive Employer' should not be construed as legal advice.

In the first installment, I provide some information on my background and qualifications, and a short description of the proactive services my division offers to clients.  Future installations will discuss topics such as compensation equity, recruiting and hiring, EEOC and OFCCP compliance, compensation self-auditing, and reduction-in-force planning.  Suggestions for topics of future installments are welcome - please contact me if there is a particular issue in which you are interested.

You can listen to the first installment via the link at the top of this blog.  I hope you'll join me at 'The Proactive  Employer'!

The Twitter Experiment

Experiments rarely tell us what we expect. That's the dirty secret of science.  -Kevin Dunbar, Director of the Laboratory For Complex Thinking and Reasonsing, University of Toronto, Scarborough

I began using Twitter in late September of this year, largely as an experiment.  There were two primary motivators for the experiment.  First, my partners and I were curious about using social media for business development purposes.  Second, being quantitative people, we thought we might generate some interesting data - average tweets per day, click-through rates, and such.  I volunteered to head up the experiment, and set up Twitter accounts for myself and a colleague.  I searched for people I already knew who were using Twitter (only a handful), followed them, and began looking for interesting things to tweet.

I started the experiment with no clear idea of how Twitter could be used for business development.  My initial thought was that I could use Twitter to stay in touch with contacts I had already made (certainly an important aspect of business development).  But I didn't think it would be possible to develop new business relationships within the context of 140 characters.

My initial hypotheses proved to be incorrect.  I was developing new relationships and engaging people nationwide in conversation.  I broke 100 followers on November 17; at this time I began to recognize the networking potential of Twitter around this same time.  My efforts then became focused on building a large network of "real" followers whose areas of expertise overlapped with my own.

I began searching for tips and how-to ideas on building a Twitter network; there was no shortage of tips.  I came across an interesting link posted by one of my Twitter 'friends'- the link pointed to a networking system for Twitter that had been successful for her.  I decided to try it out as Phase II of my experiment.  I implemented it on December 7, and my 'quality followers' increased significantly.  The following graph shows the number of my followers for the last three months (through December 27).

The system - Genesis Rocket - was designed by Ashley Morgan.  I only use some of the suggestions in the system.  For example, one suggestion is to automate tweeting of relevant content.  I prefer not to automate my content, and I choose the content for every one of my tweets (@sthomas_eea).  But there are some excellent suggestions on fully utilizing the networking abilities of Twitter, and these suggestions have been effective for me.  If you're interested, more information about Genesis Rocket can be found here: http://bit.ly/4tBYHJ

The Twitter Experiment has proven fruitful.  I have connected with a lot of interesting people whose areas of expertise overlap with mine.  I've never been more up-to-date on news items and recent developments in my field.  I'm engaging people in conversations about employment law, and sharing insights on how statistics can play a role.  I've even generated some new business leads from these conversations.  The upshot of the Twitter Experiment is that Twitter can be a very powerful networking tool; but like many things, you get out of it what you put in to it.

Third Annual ABA Journal Blawg 100 (Some of My Favorites)

The Third Annual ABA Journal Blawg 100 is out, and some of my favorite law-related blogs made the list. Congratulations to those that were selected, and keep up the great work!

WORK MATTERS by Michael Maslanka 

(@worklawyer)

http://texaslawyer.typepad.com/work_matters/

DELAWARE EMPLOYMENT LAW by Molly DiBianca 

(@MollyDiBi)

http://www.delawareemploymentlawblog.com/

ROBERT AMBROGI'S LAW SITES by Bob Ambrogi 

(@bobambrogi)

http://legaline.com/lawsites.html

CONNECTICUT EMPLOYMENT LAW BLOG by Daniel Schwartz 

(@danielschwartz)

http://www.ctemploymentlawblog.com/

3 GEEKS AND A LAW BLOG by Greg Lambert, Lisa Salazar, and Toby Brown 

(@glambert, @lihsa, @gnawledge)

http://www.geeklawblog.com/

Any Interest in Webinar on Social Media Recruiting and Disparate Impact?

I'm thinking about putting together a webinar on the potential for disparate impact associated with using social media for recruiting. At this point I'm trying to gauge interest in the topic.

If you are potentially interested in this, please email me at
sthomas_eea@minimaxconsulting.com

or DM me on Twitter: @sthomas_eea

Why Experts Use Social Media

I recently came across a post by Tracy Coenen of Sequence Inc. Forensic Accounting. Her post (which can be found here: http://ow.ly/AMnM ) posed the following question:

Can expert witnesses participate in social media? (And should they?)

This is a very interesting question; with the presence of social media in our lives expanding every day, it is a question that is sure to be on the minds of many. But perhaps the real question here is why would experts want to participate in social media?

I can't speak for all experts, but I can tell you why I participate in social media- information exchange. In my experience, many experts come from an academic setting, where open information exchange is the norm. Some experts are actively teaching in colleges and universities, while others have left the university setting to focus on consulting. My background includes a fellowship at the Center for Economic Policy Analysis, as well as serving on the faculty at New York University. I "grew up" in academic settings where sharing of thoughts and ideas was encouraged. These exchanges were not limited by discipline or departmental lines - mathematicians, biologists, physicists, and computer scientists were working with ideas that had applications in economics, and vice versa. Such interdisciplinary conversations were a benefit to everyone involved, leading us to new insights and new questions about the theories we were exploring. For me, social media is another way to engage in these conversations with people I don't regularly encounter in my daily work routine.

Is there a danger to using social media? Of course, just as there is a danger in publishing an article, giving a presentation at a seminar, authoring an expert report, or testifying to an expert opinion in court. Perhaps because social media is so accessible, the danger feels greater. It's far easier to do an internet search for an expert and download every blog entry and Tweet than it is to head to the library and photocopy journal articles, or dig up copies of old expert reports and testimony transcripts. But the fact of the matter is regardless of which form the opinion takes, it's still out there and accessible.

As far as whether expert witnesses should participate, I agree with Ms. Coenen:

Should you be concerned if the expert witness in your case is blogging or regularly posting on a site like Twitter? Probably not. For a good expert witness, social media should be an outlet to demonstrate expertise... Social media is not something to be feared in the hands of responsible users.

*Thanks to Tracy Coenen for permission to link to and discuss her post.

Using Social Networking Sites for Recruiting? Beware Disparate Impact Claims

Using social networking sites for recruiting is not a new phenomenon; three years ago, Maureen Crawford-Hentz, a recruiter for Osram Sylvania, said

Social networking technology is the absolutely the best thing to happen to recruiting -- ever.

It seems as though enthusiasm for social networking within the recruiter ranks has not diminished. In June of this year, LinkedIn launched the "Recruiting with LinkedIn Blog". Matt Warburton described this blog as one for "recruiters and folks who rely on LinkedIn for their hiring needs".

Using social networking for recruiting purposes may have made recruiters' jobs easier, but there are inherent risks. In a recent article appearing on Workforce.com, Fay Hansen cautions employers that sourcing candidates from Twitter, LinkedIn or other social networking sites may open them up to discrimination charges. Ms. Hansen states:

Some employers now rely heavily or even exclusively on Twitter or LinkedIn to fill open positions. While this approach may create short-term cost savings and new efficiencies, it may also skew applicant pools and trigger discrimination lawsuits.

Ms. Hansen's article includes the following quote by Pamela Devata, a partner in the Chicago office of Seyfarth Shaw:

Sourcing from professional network sites such as LinkedIn carries a risk tha the method could be challenged on discrimination grounds. It represents a hiring pool that is not open to the general population. Using a limited network may have a disparate impact. If hiring through these networks can be challenged, it will be.

The potential for a disparate impact claim stems from the demographics of the typical user of social networking sites. The latest data from Quantcast indicates that the majority of people using LinkedIn are age 35 and above and have at least a college education. The gender composition is approximately equal; 53 percent of the users are male. 85 percent of users are self-identified as caucasian, while 9 percent are self-identified as Asian.

Paul Mollica, a partner at Meites, Mulder, Mollica & Glink in Chicago, is also quoted in Ms. Hansen's article. According to Mr. Mollica, the first employer who is sued for disparate impact "will have to be very resourceful" since it will be very difficult to establish a reason for relying exclusively on social networking in recruiting. This is certainly an issue everyone will be monitoring.