In the Good Old Summertime

In these lazy, hazy, crazy days of summer, workers are either goofing off and dressing down — or they’re ruining their vacations by checking in with the office. (Let me know later, if you find yourself unconsciously humming either of those tunes …)

At least that is the non-consensus from three, count ’em, three surveys that crossed my desk (well, showed up in my email, anyway) today.

One, from CareerBuilder, finds that one in four employers say their workers are less productive in the summer.

Another, from Adweek/Harris Poll, shows that nearly half (46 percent) of vacationing Americans worked during their vacations.

And the third, from Adecco Staffing US, relates to appropriate workplace attire — although six in 10 of the respondents would like some extra vacation days or the ability to leave early on “summer Fridays.”

As for wardrobe, 71 percent of Americans say flip flops are the biggest summer no-no.

Amusingly, men and women differed in the acceptability of mini-skirts and strapless tops or dresses. For both, men were much more willing to see such items in the workplace.  Hmmm. Big surprise there, huh?

As for those non-vacationing vacationers in the Adweek/Harris Poll, the most frequent work-related duties involve monitoring email (35 percent), checking voicemail (22 percent) or taking phone calls from work (22 percent).

Employers in the CareerBuilder survey blame nicer weather, vacation-fever and kids being out of school for lower productivity, but nearly half (45 percent) of the employers say burnout is a problem. They may want to check out some of the tips we included in our recent HREOnline™ story, “Reversing Burnout.”

EEOC Mulls Fairness of Criminal Background Screens

Attorneys, government officials and other experts met in Washington Tuesday (July 26) to testify before the U.S. Equal Employment Opportunity Commission on the pros and cons, and fairness and safety concerns, of using arrest and conviction records when making hiring decisions.

Employers often refuse to hire people with criminal records, the commission was told, even years after they’ve completed their sentences, leading to recidivism and higher social-services costs.

“This major barrier to employment touches a broad swath of the U.S. population,” said Amy Solomon, senior adviser to the assistant attorney general of the Office of Justice Programs at the U.S. Department of Justice. “According to the DOJ’s Bureau of Justice Statistics, more than 92 million individuals have a criminal history on file in state criminal-history repositories.

“This figure is for year end 2008,” she testified, “and may include individuals with records in more than one state. That said, with about 14 million new arrests recorded annually, it is clear that a significant share of the nation’s adult population — estimated at about one in three or four adults — has a criminal record on file.

“Many arrests are for relatively minor crimes,” Solomon testified. “And what is often forgotten is that many people who have been arrested –and therefore technically have a criminal record that shows up on a background check — have never been convicted of a crime. This is true not only for those charged with minor crimes, but also for individuals arrested for serious offenses. A snapshot of felony filings in the 75 largest counties, for example, shows that one-third of felony arrests never lead to conviction.”

Barry A. Hartstein, a shareholder in the law firm of San Francisco-based Littler, testified on the confusing and often contradictory pressures on businesses when using these records for hiring purposes, including conflicting laws. He urged the EEOC to consider these constraints on businesses when developing guidance or when deciding when to sue companies or not.

“My basic premise,” said Hartstein, “is that any discussion of an individual’s criminal history in the employment setting must be put in the proper context. It is multi-dimensional, ever changing, with no easy answers or any standard formula, such as ‘one size fits all.’ ”

The EEOC provided me with this link to all details of the meeting, including a press release and full written testimony from all participants. The commission will hold the meeting record open for 15 days and is inviting members of the public to submit written comments on any issues or matters discussed.

More Opposition to the NLRB’s Actions

The HR Policy Association added its collective voice to those opposing the recent actions of the National Labor Relations Board. The HRPA, which represents more than 325 large employers, called on Congress to limit the NLRB’s activities “either through changes in the statute or in the funding of the Board.”

Some limitations have been set forth in legislation proposed in the House of Representatives by Tim Scott, a Republican from South Carolina, called “Protecting Jobs from Government Interference Act.” (I wrote about it and some other voices calling for the Obama administration to reduce its anti-business activities in Coping — or Not — with Government Regulations.)

In a letter (PDF) sent on July 27 to “key members” of Congress, Dan Yager, chief policy officer and general counsel of the HRPA, writes that the NLRB’s actions “discourage companies from opening and expanding operations in the United States, thus hurting hiring opportunities that are key to job growth and economy recovery.”

Yager lists these are “the more objectionable recent actions” of  the NLRB:

• Proposed changes in the rules governing union representation elections, including a substantial shortening of the election period from the current median of 38 days to as little as 10 days. This change is being proposed even though unions already win two out of every three elections conducted by the NLRB.

 • The issuance of a complaint by the NLRB General Counsel against Boeing for engaging in honest and open discussions with its union regarding the location of a new line of production.

 • Consideration of a fundamental change in the rules governing the identification of units of employees within a workplace who will vote on and potentially be represented by the union.

 • Expansion of the Board’s authority to certain critical aspects of non-union workplaces, such as alternative dispute resolutions, under the guise of protecting “concerted activity” by employees, even where union-related issues are not involved.

Abercrombie Might Have to Get Used to Head Scarves

Abercrombie & Fitch, doing business as Abercrombie Kids, was found in a July 13 ruling to have committed religious discrimination for refusing to hire a Muslim teen in 2008 because she was wearing a hijab head scarf when she interviewed at its store in Woodland Hills Mall, Tulsa, Okla.

A federal court in Tulsa granted summary judgment to the Equal Employment Opportunity Commission in the ruling, charging that Samantha Elauf was turned down for a sales position in June of 2008 because she wore the head covering in keeping with her religious beliefs.

Abercrombie had argued in its rebuttal that the seriousness of Elauf’s religious belief was questionable. The inquiry, the court stated in its ruling, is whether “the belief is held as a matter of conscience or instead animated by motives of deception and fraud.” The court found there was no evidence of the latter.

As EEOC attorney Jeff A. Lee said in a Society for Human Resource Management account of the case, “The court has sent a clear message to employers: that the denial of a request for a reasonable accommodation of an employee’s or applicant’s religious beliefs must be based on demonstrated facts, not guesswork or speculation.”

This isn’t an isolated head-scarf case brought against the retail giant. In a religious-discrimination complaint filed in federal court in San Francisco on June 27, 2011, the EEOC alleged the retailer violated Title VII when it fired a 19-year-old Muslim woman for wearing a hijab in her sales job in a San Mateo, Calif., Abercrombie store.

Nor is this the first time the chain’s “look policy” took a beating. An earlier case resulted in a $40 million settlement to a class including African-Americans, Asian-Americans and Latinos who were denied employment.

Perhaps it’s time to add scarves and hats to the Abercrombie “look”?

Coping — or Not — With Government Regulations

Business has been up in arms against some of the aggressive moves by the National Labor Relations Board for some time, including its efforts to significantly shorten the amount of time employers have to respond to union-organizing campaigns (see a recent HREOnline story here: “New Rules Outrage Employers“) as well as its highly publicized efforts to prevent Boeing from opening a manufacturing facility in a non-union state (see “Pro-Union Overreach?”).

Of course, it’s all part and parcel of the Obama administration’s efforts to more strictly regulate business. The administration’s pro-worker/anti-employer efforts are something that many — but certainly not all — have argued are reasons this recession is lingering on. They argue employers — especially smaller employers — are holding off hiring due to uncertainty over goverment regulations.

Just the other day, in fact, casino mogul Steve Wynn — not a small employer, certainly — who calls himself a Democratic businessman, told a group of investors that Obama was “the greatest wet blanket to business, progress and job creation in my lifetime.”

And Home Depot co-founder Bernie Marcus recently told the Investors Business Daily: “Every day you see rules and regulations from a group of Washington bureaucrats who know nothing about running a business. And I mean every day. It’s become stifling.” He said it would be impossible for a company like Home Depot to begin and prosper if it was started today.

Back in Congress, in an effort that will probably fail, Tim Scott, a Republican from South Carolina, introduced a “Protecting Jobs from Government Interference Act” in the House of Representatives.

It immediately drew support from the National Association of Manufacturers — which also is no big surprise.

NAM President and CEO Jay Timmons noted that a recent poll of members found that 69 percent of the 1,000 respondents said the “NLRB’s actions will negatively affect their ability to create jobs.”

In response to some of this building criticism, Obama previously issued an Executive Order (PDF) telling agencies to make their regulations “more effective or less burdensome.” (see “Scrutinizing the EEOC’s Regulations“), but I don’t think too many businesspeople think that’s an order that’s going to followed to the benefit of business.

TheLadders Steps Down a Rung or Two

TheLadders, which for the past eight years has focused on $100K  job seekers, is expanding its recruitment services to all professional careers. The service becomes effective in September.

“It’s not a change of our whole model,” says Alex Douzet, co-founder and president of the privately owned company. “It’s an expansion of its model.”

The expansion is a response, he says, to many requests from both clients and non-$100K job seekers.

“We have been turning people away,” he says, noting that recruiters in Fortune 1,000 companies are often generalists and do not differentiate their efforts by pay level. “For them, it’s actually going to be a tremendous benefit.”

He acknowledges that some observers may link the expansion with “losing a little bit of that … small-community aspect,” but says providing TheLadders’ full suite of job-search solutions “will be a great benefit for job seeker and client.”

Job seekers pay $15 a month to be a member of TheLadders, while recruiters pay either $10,000 or $16,000 per year, depending on level of services.

Douzet says “business has been good” and notes that, for the professional market, there is only 4 percent unemployment, compared to 9.1 percent for the job market at large. “In the professional market, we are close to a full employment cycle.”

Changes to FLSA Urged Before Congress

The notion of modifying the Fair Labor Standards Act to bring it up-to-date with today’s more mobile, flexible and technology-driven workforce took a step forward last Thursday in a hearing before the House Subcommittee on Workforce Protections.

The hearing was chaired by Rep. Tim Walberg, R-Mich., and included statements by J. Randall MacDonald, senior vice-president of HR for Armonk-N.Y.-based IBM Corp.; Nobumichi Hara, senior vice president of human capital for Phoenix-based Goodwill Industries of Central Arizona (speaking on behalf of the Society for Human Resource Management); Richard L. Alfred, partner at Seyfarth Shaw in Boston; and Judith M. Conti, federal advocacy coordinator for the National Employment Law Project in Washington. Here’s a link to the hearing’s agenda, plus full testimonies of all who participated.

Almost everyone in attendance urged for revisions to the law’s exempt and nonexempt definitions, overtime regulations and other wage-and-hour stipulations that they say prevent employers from competing in today’s marketplace.

Hara cited an example in which his company would have to pay overtime to a group of employees in the first week of their proposed biweekly schedule even though the second week (a lighter schedule) would have satisfied the two-week hourly requirement. “SHRM believes the FLSA hinders employers’ abilities to provide the flexibility that millions of nonexempt employees want,” Hara said.

MacDonald, who also chairs the HR Policy Association (representing more than 300 CHROs of the nation’s largest companies) testified that “there are areas of major disconnect between this 70-year-old labor law and today’s rapidly changing workplace environment.” (Here’s a link to his testimony.)

“The business world of 2011 barely resembles that of the 1930s and 1940s, while our primary labor law is becoming ever more outdated, having barely changed in all that time,” he said. “Simply put, this law is now a job killer. It yields advantages to global competitors without commensurate payback to U.S. workers.

“If nothing is done to make necessary reforms,” MacDonald said, “we sustain a disincentive for job growth in America, hampering employees’ opportunities and giving U.S. employers another reason to invest elsewhere. … The disconnect between the FLSA and the modern workplace will continue to grow, increasing tensions between employers, employees and regulators, with the only true beneficiary being the plaintiff’s bar.”

MacDonald urged Congress to make six specific changes to the law, including updating the definition of computer employees to include more duties, expanding exemptions to include “well-compensated, commissioned inside salespeople” and allowing a broad pre-emption of state and local wage and hour laws.

“Why is it,” MacDonald asked, “that a 70-year-old law, enacted in a different century, which was based on a different model of the U.S. economy, and at a time that pre-dates global competition and nearly all technology we use today, should not be modernized, clarified and made relevant for today’s economic realities?”



A New ADA Category?

Who knows if it would fly here — after all the United States does now have a much less rigid definition of disability — but in Sweden, a restaurant dishwasher qualified for disability based on his love of heavy-metal music.

According to The Local, an English-language Swedish newspaper, Roger Tullgren, 42, from southern Sweden, will receive state benefits to supplement his income since his heavy-metal addiction has dominated so much of his life, causing him to lose previous jobs.

” ‘I have been trying for ten years to get this classified as a handicap,’ ” Tullgren told The Local. ” ‘I spoke to three psychologists and they finally agreed that I needed this to avoid being discriminated against.’ ” 

 According to the article, Tullgren skips work so he can attend rock concerts — about 300 a year. After losing his previous job, he relied on welfare, but a session with an occupational psychologist led to an assessment in which “his heavy metal lifestyle was classified as a disability.”

 “The manager at his new workplace allows him to go to concerts as long as he makes up for lost time at a later point. He is also allowed to dress as he likes and listen to heavy metal while washing up.”

Well, back to reality, maybe this wouldn’t qualify as a U.S. disability, but I wouldn’t bet any money that it might not pass muster as a religion: An employee could seek accommodation for services in accordance with the Book of Black Sabbath — or whatever.

401(k) Is Only Retirement Plan for Many Workers

Have you ever wondered just how important a role the 401(k) plays in the retirement plans of American workers?

Well, we now have an answer: The starring (and sometimes solo) role.

According to the good folks at Fidelity Investments, 55 percent of 1,000 recently surveyed Americans say they would not be saving for retirement if they did not have a 401(k), and 19 percent say their 401(k) is their only savings for retirement.

“This research helps us better understand how Americans use their 401(k)s to help achieve their long-term retirement savings goals,” said James M. MacDonald, President, Workplace Investing, Fidelity Investments. “It also provides an interesting snapshot of the actions of workplace plan participants in an uncertain economic climate and highlights the importance of Fidelity’s wide array of financial education offerings, from online tools to one-on-one guidance.”

But the survey does offer a ray of hope on the retirement-savings front, showing that 37 percent of working respondents are “building retirement savings in an IRA”:

In addition, 33 percent are in an employer-sponsored pension plan, 28 percent have savings in bank accounts, and 28 percent have investments in stocks or bonds. Pre-retirees 55 and older are the most active users of IRAs, with 44 percent saying they utilize these retirement savings investments

But, with the overall survey highlighting just how dependent American workers are upon this retirement vehicle known as the 401(k), we can only hope that HR leaders are using all the tools in their communications toolboxes to ensure that their workers participate in retirement-savings programs whenever and whereever they are available, regardless of whether the company is matching contributions.

Otherwise, retirement may never come for many workers.

Report Suggests Widespread Discrimination Against the Unemployed

If you want a job, you’d better have one already. That’s the mindset of many employers, according to a recent analysis of job listings by the National Employment Law Project, a nonprofit association of employment attorneys. 

During a four-week period earlier this spring, a NELP researcher combed through a sampling of online job postings on major career boards including, and Craigslist and identified more than 150 ads that included exclusions based on current employment status.

The overwhelming majority of these ads required that applicants “must be currently employed,” according to NELP. About half the ads were from staffing firms, the researcher found. NELP is a supporter of the Fair Employment Opportunity Act of 2011, which would specifically prohibit discrimination against the unemployed.

The legislation’s fate is uncertain, but considering the sheer number of Americans–many of them highly skilled–who are unemployed  through no fault of their own, the fact that such legislation should even need to be considered strikes me as pathetic.

There’s just no moral justification for refusing to even consider an unemployed person for a job, and for those who would say “it’s about business, not morals,” I think an ethics refresher course is in order.